Johnson v. Brunswick Riverview Club Inc

• Decision Date: 04 December 2009
• Docket Number: 1071128.
• Citation: 39 So.3d 132
• Parties: Elaine JOHNSONv.BRUNSWICK RIVERVIEW CLUB, INC., and Leiserv, Inc., d/b/a Brunswick Riverview Lanes.
• Court: Alabama Supreme Court

39 So.3d 132

Elaine JOHNSONv.BRUNSWICK RIVERVIEW CLUB, INC., and Leiserv, Inc., d/b/a Brunswick Riverview Lanes.

1071128.

Supreme Court of Alabama.

Dec. 4, 2009.

Richard A. Bearden and Dexter L. McFarlin of Massey, Stotser & Nichols, P.C., Birmingham, for appellant.

William P. Cobb II of Balch & Bingham LLP, Montgomery; and J. Eric Getty of Balch & Bingham LLP, Birmingham, for appellees.

PER CURIAM.

Elaine Johnson appeals from a summary judgment entered in favor of Brunswick Riverview Club, Inc., and Leiserv, Inc., d/b/a Brunswick Riverview Lanes (hereinafter referred to collectively as “Brunswick”). We affirm.

Facts and Procedural History

The evidence, viewed in the light most favorable to Johnson, the nonmovant Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993), suggests the following facts.

On November 14, 2005, at approximately 3:30 p.m., Johnson's son, Keith Oden, arrived alone at Brunswick Riverview Lanes, a bowling alley owned by Leiserv, Inc. Brunswick Riverview Club, Inc., owns the license for the operation of a club on the premises of Brunswick Riverview Lanes. Between 5:00 p.m. and 5:30 p.m., Oden telephoned Shawn Scripps and asked Scripps to join him at the bowling alley. According to Scripps, he could tell from the telephone conversation that Oden was intoxicated. At approximately 6:00 p.m., Scripps arrived at the bowling alley and began to bowl and to drink beer with Oden. According to Scripps, Oden was “loud and boisterous” while they were at the bowling alley, and an employee of the bowling alley “had to call Keith down because he was using inappropriate language in the vicinity of a family who was also bowling.” A credit-card receipt shows that between 3:37 p.m. and 7:54 p.m. the employees of the bowling alley sold four 60-ounce pitchers of beer to Oden. Around 8:00 p.m., Oden drove his vehicle from the bowling alley; nobody else was in the vehicle. Shortly after leaving the bowling alley, Oden was involved in a one-vehicle accident in which he was killed. Oden's blood-alcohol level at the time of the accident was 0.39, almost five times the legal limit for operating a vehicle. See § 32-5A-191, Ala.Code 1975.

The internal alcoholic-beverage-service policy at Brunswick Riverview Lanes prohibited selling a pitcher of beer for consumption by a single individual. The policy also stated that any customer showing visible signs of intoxication should be urged by the server or manager to use alternative transportation and, if the customer refuses to use alternative transportation, the employee should inform the customer that the appropriate law-enforcement officials will be notified if the customer attempts to drive a vehicle away from the bowling alley.

At the time of his death, Oden was 31 years old, and he owned and operated a landscaping business. Johnson testified that Oden did not live with her and that he was not providing her any financial support at the time of his death. Johnson also testified that she did not have any expectation of receiving any financial support from Oden in the future. Johnson paid $3,000 for Oden's funeral expenses pursuant to a contract she entered into with a funeral home on November 16, 2005.

On May 5, 2006, Johnson, in her individual capacity, sued Brunswick, asserting a claim under Alabama's Dram Shop Act, § 6-5-71, Ala.Code 1975, and a claim of negligent hiring, training, and/or supervision of employees. Brunswick moved for a summary judgment, arguing that Johnson did not have standing to bring a claim under the Dram Shop Act because, it argued, she was not “injured in person, property, or means of support,” as required by the Act. Brunswick also argued that the claim of negligent hiring, training, and/or supervision fails because, it alleged, Alabama does not recognize a common-law cause of action for the negligent dispensing of alcohol; the Dram Shop Act provides the exclusive remedy for the unlawful dispensing of alcohol to an adult. Johnson responded that she had standing to bring a claim under the Dram Shop Act because, she said, her mental anguish constituted an injury to her person and her payment of Oden's funeral expenses constituted an injury to her property. Johnson also argued that Brunswick was attempting to misrepresent her negligent hiring, training, and/or supervision claim. Johnson alleged that this claim does not assert that Brunswick is liable for negligently serving alcohol. Johnson argued that “[t]he conduct which [she] alleges constitutes negligence on the part of [Brunswick] is the conduct of hiring, training, and/or supervising employees in carrying out duties which are required by statute.”

On April 8, 2008, the trial court entered a summary judgment in favor of Brunswick, holding:

“This matter came before the court on [Brunswick's] motion for summary judgment filed on or about November 15, 2007. The court heard oral arguments on February 25, 2008. Both [Johnson] and [Brunswick] filed supplemental memorandum on March 10, 2008. After consideration of the motions, pleadings and arguments, the court is of the opinion that [Brunswick's] motion for summary judgment is due to be granted. The court finds that plaintiff, Elaine Johnson, mother of the decedent, brought this lawsuit in her individual capacity pursuant to Alabama's Dram Shop Act. Alabama Code Section 6-5-71. The court finds that [Johnson] was not injured in ‘person, property or means of support’ as contemplated in the Act. For these reasons, and others as set out in [Brunswick's] brief, the court hereby grants [Brunswick's] motion for summary judgment and dismisses all claims by [Johnson] against [Brunswick].”

Johnson appealed.

Standard of Review

In Pittman v. United Toll Systems, LLC, 882 So.2d 842 (Ala.2003), this Court set forth the standard of review applicable to a summary judgment:

“This Court's review of a summary judgment is de novo.

“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds Bruce v. Cole, 854 So.2d 47 (Ala.2003) ]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

882 So.2d at 844 (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).

Discussion

First, Johnson alleges that the trial court erred in entering a summary judgment in favor of Brunswick on her Dram Shop Act claim because, she says, she demonstrated an injury to her property and an injury to her person, as required by the Act. Specifically, Johnson alleges that the payment of Oden's funeral expenses constituted an injury to her property and that her mental anguish from the loss of her son constituted an injury to her person within the meaning of the Dram Shop Act.

Section 6-5-71, Ala.Code 1975, Alabama's Dram Shop Act, provides, in pertinent part, as follows:

“Every wife, child, parent, or other person who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.”

This Court has concluded that “ § 6-5-71 is penal in nature and that its purpose is to punish the owners of taverns who continue to serve customers after they have become intoxicated.” McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala.1991).

Both sides acknowledge that, in order for Johnson to be able to recover under the Dram Shop Act, she must be a “person who [was] injured in person, property, or means of support” by Oden's intoxication. However, the parties disagree as to whether the payment of Oden's funeral expenses constituted an injury to Johnson's property and whether Johnson's mental anguish caused by her son's death constituted an injury to her person for purposes of the Dram Shop Act. These issues appear to involve questions of first impression for this Court.

In McIsaac, a passenger was severely injured in an automobile accident, and his mother sued a bar and others under the Dram Shop Act, alleging that the defendants sold the driver of the automobile in which her son was a passenger intoxicating liquor while he was already visibly intoxicated. The passenger, a 21-year-old adult, testified that he had not lived at home for some time. Furthermore, he stated that he was not a dependent because he had a job with a telephone company at the time of the accident. This Court examined the mother's claim, as follows:

“[The mother] alleged in the complaint that she expended various sums of money on [the passenger] as a result of the defendants' alleged violation of the Dram Shop Act; however, there was no evidence before the

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