Klingerman v. SOL Corp. of Maine

• Decision Date: 24 February 1986
• Citation: 505 A.2d 474
• Parties: Mabrie I. KLINGERMAN v. SOL CORPORATION OF MAINE, et al.
• Court: Maine Supreme Court

Page 474

505 A.2d 474

54 USLW 2460

Mabrie I. KLINGERMAN v. SOL CORPORATION OF MAINE, et al.

Supreme Judicial Court of Maine.

Argued Jan. 6, 1986.

Decided Feb. 24, 1986.

Berman, Simmons & Goldberg, Paul F. Macri (orally), Jack H. Simmons, Steven D. Silin, Lewiston, for plaintiff.

Friedman & Babcock, Martha C. Gaythwaite (orally), Harold Friedman, Portland, for SOL Corp. of Maine.

Preti, Flaherty & Beliveau, Michael D. Messerschmidt (orally), Portland, for Ramada Inns and Glad Associates.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.

WATHEN, Justice.

This case requires a determination of the extent of a tavernkeeper's liability for the sale of alcoholic beverages to an intoxicated person. Three questions of first impression are presented: (1) Whether the personal representative of a decedent who died of alcohol poisoning, allegedly caused by intoxicants furnished by the defendants, may maintain a wrongful death action under the Dram Shop Act, 17 M.R.S.A. § 2002 (1983 & Supp. 1985-1986)? (2) Whether the Act is an exclusive remedy? (3) Whether, under these circumstances, any cause of action exists at common law? Plaintiff appeals from an order of the Superior Court (Androscoggin County) dismissing plaintiff's complaint for failure to state a claim upon which relief may be granted. We sustain the appeal.

I.

In determining whether a complaint states a claim upon which relief may be granted, this Court assumes that the factual allegations in the complaint are true. City of South Portland v. State, 476 A.2d 690, 692 (Me.1984). Those allegations are as follows. Plaintiff Mabrie Klingerman is the domiciliary foreign personal representative ¹ of decedent Keith Klingerman. On December 5, 1982, the decedent, a California resident, went to the Ramada Inn in Lewiston. He consumed a large quantity of intoxicating beverages and later died of alcohol poisoning. Plaintiff alleges that defendants negligently or intentionally continued to serve the decedent even though they knew or should have known that he was intoxicated. She brought this action in Superior Court seeking damages under the Dram Shop Act and common law. The court granted defendants' Rule 12(b)(6) motion to dismiss and entered judgment in their favor. Plaintiff then brought this appeal.

II.

As an initial matter, we observe that plaintiff brought suit in her capacity as personal representative for the decedent's estate, seeking damages for the estate and its beneficiaries. It is therefore apparent that this is a wrongful death action. See 18-A M.R.S.A. § 2-804(b) (Supp.1985-1986). Wrongful death actions may be maintained if the decedent himself, had he lived, would have been entitled to sue. 18-A M.R.S.A. § 2-804(a) (1981); Metrinko v. Witherell, 134 Me. 483, 485, 188 A. 213, 214 (1936). For purposes of our review, plaintiff's capacity to bring this action under either the Dram Shop Act or the common law therefore depends upon whether the decedent himself could have maintained an action if he had lived.

We first discuss whether plaintiff may maintain this action under the Dram Shop Act, which provides:

Every wife, child, parent, guardian, husband or other person, who is injured in person, property, means of support or otherwise by any intoxicated person or by reason of the intoxication of any person, shall have a right of action in his own name against anyone who, by selling or giving any intoxicating liquors or otherwise, in violation of law, has caused or contributed to the intoxication of such person. In such action the plaintiff may recover both actual and exemplary damages. The owner, lessee or person renting or leasing any building or premises, having knowledge that intoxicating liquors are sold therein contrary to law, is liable with the person selling or giving intoxicating liquors. In actions by a wife, husband, parent or child, general reputation of such relationship is prima facie evidence thereof, and the amount recovered by a wife or child shall be her or his sole and separate property. The law of comparative negligence shall apply to any action under this section, except that each defendant shall be severally liable and not jointly liable, for that percentage of the plaintiff's damages which corresponds to that defendant's percentage of fault as determined by the court or a jury. To recover damages under this section, the injured person shall give written notice to the seller or giver within 2 years of the occurrence of the injury. Notice shall specify: The injured person's intention to bring an action under this section; the time, the date and the person to whom that sale or gift was made; the name and address of the person injured or whose property was damaged; and the time, date and place where the injury to person or property occurred.

17 M.R.S.A. § 2002 (Supp. 1985-1986). Plaintiff argues that the words "by reason of the intoxication of any person" can be construed in a manner permitting her to recover under the Act and that the phrase "or other person" is broad enough to include the intoxicated person as a claimant. Defendants contend that the statute restricts recovery to the enumerated classes of potential claimants and does not include the intoxicated person.

The plain wording of the Act lends no support to the plaintiff's argument. There is no express language in the statute conferring a right of action upon the intoxicated person. Instead, the categories of potential plaintiffs are limited to "[e]very wife, child, parent, guardian, [or] husband ...." Following the specifically enumerated classes of plaintiffs are the general words "or other person." Under the rule of ejusdem generis, when enumerating words are followed by words of general import, the general words, if their meaning is uncertain, should be controlled by the specific. State v. Ferris, 284 A.2d 288, 290 (Me.1971). Here, the enumerated individuals upon whom the statute confers a right of action are placed in relationship to the intoxicated person. In order to be entitled to sue, "other persons" must also stand in relation to the intoxicated person in some manner. The intoxicated person himself is precluded from suing under the Act because he cannot stand in special relation to himself. Brooks v. Cook, 44 Mich. 617, 7 N.W. 216, 217 (1880).

The language "by reason of the intoxication of any person" cannot by any reasonable construction be read as entitling the intoxicated person to sue under the Act. Those words refer only to injuries indirectly caused by the intoxicated person, thus specifying another manner in which the named categories of plaintiffs may recover. They do not in any way enlarge upon the classes of potential plaintiffs. We conclude that the intoxicated person himself may not maintain an action for damages under the Dram Shop Act. ²

III.

We turn now to consider plaintiff's second argument, that the motion to dismiss was erroneously granted in that plaintiff has alleged facts entitling her to relief at common law. We must determine as a threshold matter, however, whether the Legislature intended that the Dram Shop Act preempt development of common law principles governing the tortious sale of alcoholic beverages. If the statute does not constitute an exclusive remedy, the merits of this action will be governed by common law principles.

Neither the plain language of the Act nor its legislative history suggest that the Legislature intended for the statute to prevent recovery at common law. No portion of the Act expressly bars a common law civil action, nor is there any indication that the statute as a whole constitutes a self-contained remedy. Cf. Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153, 157 (1961) (fact that dram shop statute set out damage limits and specified court procedures compelled conclusion that legislative remedy was exclusive). Defendants point out that the Act was amended in 1985 to add a sunset provision repealing the entire statute in 1987, apparently so that the Legislature might enact more comprehensive legislation. ³ 17 M.R.S.A. § 2002 (1983), amended by P.L. 1985, ch. 435, § 1; see House Amend. A to L.D. 1568, No. H. 395 (Statement of Fact) (112th Legis.1985). Defendants argue that the sunset provision evinces a legislative intent to preempt the field of vendor liability for the sale of alcoholic beverages. We disagree. The future repeal of a statute, for whatever reason, does not foreshadow what will be enacted in the statute's place. We are required to apply the existing law and carry out the intent of the Legislature that enacted the law.

Jurisdictions with dram shop legislation in effect do not agree on whether the statute creates an exclusive remedy. In many instances, dram shop legislation was enacted to abrogate court decisions denying liability for the sale of intoxicating liquor to an able-bodied person who injured another as a result of his intoxication. See, e.g., Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 74 (1889). Some courts held that because dram shop laws created liability where none previously existed at common law, the statutory remedy was exclusive. Connolly v. Conlan, 371 N.W.2d 832, 833 (Iowa 1985); Meany v. Newell, 367 N.W.2d 472, 474-75 (Minn.1985). This view might be more compelling if the common law rule had remained unchanged.

In the absence of dram shop statutes, however, an increasing number of jurisdictions have permitted plaintiffs to pursue common law causes of action. See, e.g., Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965). Courts in several other states have held that their dram shop laws do not preclude common law causes of action. Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1, 2 (1980); Dynarski v. U-Crest Fire Dist., 112 Misc.2d 344, 447 N.Y.S.2d 86, 87-88 (1981); Mason v. Roberts, 33 Ohio St.2d 29, 294 N.E.2d 884, 887 (1973). As we discuss in greater detail in Part IV of our opinion, cour...