Kindt v. Kauffman

• Decision Date: 29 April 1976
• Citation: 129 Cal.Rptr. 603,57 Cal.App.3d 845
• Court: California Court of Appeals Court of Appeals
• Parties: Helmuth Fred KINDT, Plaintiff and Appellant, v. H. R. KAUFFMAN et al., Defendants and Respondents. Civ. 14800.

Page 603

129 Cal.Rptr. 603

57 Cal.App.3d 845

Helmuth Fred KINDT, Plaintiff and Appellant, v. H. R. KAUFFMAN et al., Defendants and Respondents.

Civ. 14800.

Court of Appeal, Third District, California.

April 29, 1976.

Hearing Denied June 24, 1976.

Friedman, Collard & Kauffman by Wade Thompson, Sacramento, for plaintiff and appellant.

Sedgwick, Detert, Moran & Arnold by Mark W. Hudson, San Franciso, for defendants and respondents.

BY THE COURT:

A tavern customer here sues a tavern keeper, alleging that the latter negligently sold him alcoholic beverages when plaintiff was obviously intoxicated, in violation of Business and Professions Code section 25602, causing his involvement in a later automobile collision with injury to himself. The trial court sustained the tavern keeper's general demurrer without leave to amend. Plaintiff appeals from the ensuing judgment of dismissal.

California courts for many years adhered to the common law rule rejecting a liquor seller's civil liability for damages suffered by a patron or a third person injured by such patron as a result of the latter's intoxication. In Vesely v. Sager, (1971), 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, the California Supreme Court partially abrogated the common law rule. Limiting itself to injury claims of third persons, the court ruled that section 25602 of the Business and Professions Code, making it a misdemeanor to furnish alcoholic beverages to an obviously intoxicated person, was designed to protect members of the general public from injury resulting from excessive use of intoxicating liquor. The Supreme Court stated:

'To the extent that the common law rule of nonliability is based on concepts of proximate cause, we are persuaded by the reasoning of the cases that have abandoned that rule. The decisions in those jurisdictions which have abandoned the common law rule invoke principles of proximate cause similar to those established in this state by cases dealing with matters other than the furnishing of alcoholic beverages. (See Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 60 Cal.Rptr. 510, 430 P.2d 68; Stewart v. Cox (1961) 55 Cal.2d 857, 863--864, 13 Cal.Rptr. 521, 362 P.2d 345; Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269; McEvoy v. American Pool Corp. (1948) 32 Cal.2d 295, 298--299, 195 P.2d 783; Mosley v. Arden Farms (Co.) (1945) 26 Cal.2d 213, 218, 157 P.2d 372 (158 A.L.R. 872); Stasulat v. Pacific Gas & Elec. Co. (1937) 8 Cal.2d 631, 637, 67 P.2d 678; Prosser, Proximate Cause in California (1950) 38 Cal.L.Rev. 369). Under these principles an actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. (Stewart v. Cox, supra, 55 Cal.2d at pp. 863--864, 13 Cal.Rptr. 521, 362 P.2d 345; Richardson v. Ham, supra, 44 Cal.2d at p. 777, 285 P.2d 269; Eads v. Marks (1952) 39 Cal.2d 807, 812, 249 P.2d 257; Benton v. Sloss (1952) 38 Cal.2d 399, 405, 240 P.2d 575; Mosley v. Arden Farms (Co.), supra, 26 Cal.2d at p. 218, 157 P.2d 372; Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687, 691, 58 Cal.Rptr. 792; Ewert v. Southern Cal. Gas Co. (1965) 237 Cal.App.2d 163, 169--173, 46 Cal.Rptr. 631; Rest.2d Torts, §§ 302, 302A, 431, 447.) Moreover, 'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.' (Rest.2d Torts, § 449; Schwartz v. Helms Bakery Limited, supra, 67 Cal.2d at pp. 241--242, 60 Cal.Rptr. 510, 430 P.2d 68; Richardson v. Ham, supra, 44 Cal.2d 772, at p. 777, 285 P.2d 269; McEvoy v. American Pool Corp., supra, 32 Cal.2d 295, at p. 299, 195 P.2d 783.)'

On the subject of duty of care, the Supreme Court continued:

'A duty of care, and the attendant standard of conduct required of a reasonable man, may of course be found in a legislative enactment which does not provide for civil liability. (Citations.) In this state a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute. (Alarid v. Vanier (1958) 50 Cal.2d 617, 327 P.2d 897; Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 177 P.2d 279.) The Legislature has recently codified this presumption with the adoption of Evidence Code section 669: 'The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.' (Subd. (a).)

'In the instant case a duty of care is imposed upon defendant Sager by Business and Professions Code section 25602, which provides: 'Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obvously intoxicated person is guilty of a misdemeanor.' This provision was enacted as part of the Alcoholic Beverage Control Act of 1935 (Stats.1935, ch. 330, § 62, at p. 1151) and was adopted for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor.' (Id. at pp. 163--165, 95 Cal.Rptr. at p. 631, 486 P.2d at p. 159.)

The Vesely court further declared, '. . . we do not decide . . . whether a person who is served alcoholic beverages in violation of the statute may recover for injuries suffered as a result of that violation.' (Id. at p. 157, 95 Cal.Rptr. at p. 625, 486 P.2d at p. 153.)

Since Vesely, three Courts of Appeal and the California Legislature have considered the question here presented. Carlisle v. Kanaywer (1972), 24 Cal.App.3d 587 591--592, 101 Cal.Rptr. 246 (First Dist., Div. Three) and Sargent v. Goldberg (1972), 25 Cal.App.3d 940, 944, 102 Cal.Rptr. 300 (Second Dist., Div. Three) both rejected a claim for the patron's own injury or death on the ground that the allegation of his intoxication showed contributory negligence as a matter of law. Cooper v. National Railroad Passenger Corp. (1975), 45 Cal.App.3d 389, 119 Cal.Rptr. 541 (Second Dist., Div. Two) reached the same result, basing it upon three grounds. That opinion, at pages 393--394, 119 Cal.Rptr. at page 544, states: 'First it has been said that the drinking of alcoholic beverages and not their serving is the proximate cause of any injury that results to the drinker from his own intoxication. (Cole v. Rush, 45 Cal.2d 345, 351, 289 P.2d 450, (54 A.L.R.2d 1137); Hitson v. Dwyer, 61 Cal.App.2d 803, 808--809, 143 P.2d 952.) Second, it is also said that even though the server is negligent and in violation of law by continuing to serve alcoholic beverages to an obviously intoxicated drinker, the drinker's cause of action is barred by his own contributory negligence (Cole v. Rush, supra, 45 Cal.2d p. 356, 289 P.2d 450), or, we think more precisely, by his voluntary assumption of the known and conspicuous risks incident to the consumption of alcoholic beverages in bars. (McNally v. Addis (1970) 65 Misc.2d 204, 317 N.Y.S.2d 157, 180; see Collier v. Stamatis (1945) 63 Ariz. 285, 162 P.2d 125, 127--128.) One of these known and conspicuous risks is the possibility that the bartender will negligently fail to recognize the drinker's obviously intoxicated condition. ¹ ' 'Thus,

when a drinker occupies a stool at the bar, he implicitly acknowledges the possibility that the bartender may negligently continue to serve him alcoholic beverages even though he has become intoxicated and accident-prone as a result of his condition. (See Rest.2d Torts, § 496 F.) (Fn. omitted.) Third, we note that while the bartender who serves alcoholic beverages to an obviously intoxicated patron is violating the criminal law (Bus. & Prof.Code, § 25602) The patron is likewise violating the criminal law by being drunk in a public place (Pen.Code, § 647, subd. (f)). We have here a classic instance of parties In pari delicto, or equal criminal fault, and in their relationship to one another the law normally leaves the parties in the condition it finds them.

'We think each of the foregoing expressions of law reflects the basic view of society that Self-police provides the primary defense against the evils of intoxication and outside police plays only a secondary role. A failure of primary policing is not excused or condoned by a failure of secondary policing, and the person with primary responsibility has no recourse for losses against one who is only secondarily responsible. This for the reason put forth by the Supreme Court of Connecticut in Nolan v. Morelli (1967) 154 Conn. 432, 226 A.2d 383, 387: 'To recompense in damages an injury to an intoxicated person or his property resulting from his own overindulgence in intoxicating liquor might, quite properly, be felt by the General Assembly to encourage, rather than to discourage, such overindulgence. '' (Emphasis added.)

During the 1972 regular session of the California Legislature, Assembly Bill No. 1864 was introduced (Assemblyman Ketchum-March 15, 1972). It was in part an attempt to codify the Vesely decision (see 5 Pac.L.Journal 186, 191) and to extend its purview so as to make any person licensed under the Alcoholic Beverage Control Act civilly liable to the patron where the sale is in...