Lewis v. Wolf

• Decision Date: 30 March 1979
• Docket Number: CA-CIV,No. 2,2
• Citation: 596 P.2d 705,122 Ariz. 567
• Parties: Danny Allen LEWIS and Faye Lee Lewis, husband and wife, for and on behalf of Hazel Christina Lewis, Deceased, Plaintiffs/Appellants, v. Mel WOLF and Helen Wolf, husband and wife, dba Tojo's Bar,Defendants/Appellees. 3116.
• Court: Arizona Court of Appeals

Page 705

596 P.2d 705

122 Ariz. 567

Danny Allen LEWIS and Faye Lee Lewis, husband and wife, for and on behalf of Hazel Christina Lewis, Deceased, Plaintiffs/Appellants, v. Mel WOLF and Helen Wolf, husband and wife, dba Tojo's Bar,Defendants/Appellees.

No. 2 CA-CIV 3116.

Court of Appeals of Arizona, Division 2.

March 30, 1979.

Rehearing Denied April 25, 1979.

Review Denied May 30, 1979.

Haralson, Kinerk & Morey, P. C., by Burton J. Kinerk and Carter Morey, Tucson, for plaintiffs/appellants.

Chandler, Tullar, Udall & Redhair by D. B. Udall, Tucson, for defendants/appellees.

OPINION

HOWARD, Judge.

This is another one of those cases where an innocent life has been snuffed out by a drunk driver. The facts considered in the light most favorable to appellants are as follows. On April 14, 1976, Niles Barnes was a customer in Tojo's Bar. He was served alcoholic beverages despite the fact that he was visibly intoxicated. He left Tojo's in his automobile, stopped briefly at another bar and then collided head-on, at a speed in excess of 80 miles per hour, into the Lewis automobile, killing Hazel Lewis and injuring her parents. The trial court granted the bar owner's motion for summary judgment based upon the latest appellate court pronouncement in Profitt v. Canez, 118 Ariz. 235, 575 P.2d 1261 (App.1977), which held that in the absence of a dram shop law the bar owner is not liable in a case such as this.

Our position as an intermediate appellate court constrains us to affirm because of our Supreme Court's decisions in Pratt v. Daly 55 Ariz. 535, 104 P.2d 147 (1940) and Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125 (1945). This does not mean, however, that we cannot criticize a rule that is patently unsupportable by either accepted fundamental legal principles or by logic and is contrary to present tort concepts of the State of Arizona. We wish to extend the criticism contained in the author's concurring opinion in Pierce v. Lopez, 16 Ariz.App. 54, 490 P.2d 1182 (1971).

Before stating the common law rule that is followed in Arizona and the reason for the rule, it would be well to remember the function of common law judges and the role of the common law. The main characteristic of the common law is its dynamism. It does not remain static. The common law is not a thing of chiseled marble to be left unchanged for centuries.

"Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others 'long dead and unaware of the problems of the age in which he lives, do his thinking for him.' Mr. Justice Douglas, 'Stare Decisis' 49 Columbia Law Review 735, 736." Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105, 110 (1962). (Footnote omitted)

Arizona has adopted the common law with certain exceptions by the enactment of A.R.S. Sec. 1-201, which states:

"The common law only so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people thereof, and not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, or established customs of the people of this state, is adopted and shall be the rule of decision in all courts of this state."

Although Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953), said that we may not depart from the common law because we think it fallacious and anomalous, A.R.S. Sec. 1-201 still allows us great leeway in performing our functions as common law judges.

When a common law rule is seriously challenged it cannot be dismissed by simply citing past authority by rote. An analysis of the old rule must be undertaken to determine if it is still valid under present conditions and statutory and case law. This we shall do.

At common law, the person who furnishes or sells intoxicating liquor to another cannot be held liable for a third person's injuries that were caused by the intoxicated person, because the drinking of the liquor, not the act of furnishing it, is the proximate cause of the injury. Pratt v. Daly, supra; Collier v. Stamatis, supra. The rule is based on the obvious fact that one cannot be intoxicated by liquor furnished him if he does not drink it. Pratt v. Daly, supra.

How sound is this rule and is it repugnant to our present negligence law? The term "proximate cause" is defined in Pacht v. Morris, 107 Ariz. 392, 489 P.2d 29 (1971) as any cause that, in a natural and continuous sequence unbroken by any efficient intervening cause, produces injury, and without which the injury would not have occurred. Whether, by reason of an intervening act, there is a break in causation that will relieve a defendant from liability is dependent upon whether the intervening act is one that should have been reasonably anticipated by the defendant. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958). Ordinarily questions of proximate cause and intervening cause are left to the jury for its factual determination. Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201 (1949). Furthermore, the Restatement (Second) of Torts Sec. 449 (1965) states:

"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."

This is substantially the same as Sec. 449 of the first Restatement which was quoted with approval in Nichols.

As was stated in Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971):

"Insofar as proximate cause is concerned, we find no basis for a distinction founded solely on the fact that the consumption of an alcoholic beverage is a voluntary act of the consumer and is a link in the chain of causation from the furnishing of the beverage to the injury resulting from intoxication. Under the above principles of proximate cause, it is clear that the furnishing of an alcoholic beverage to an intoxicated person may be a proximate cause of injuries inflicted by that individual upon a third person. If such furnishing is a proximate cause, it is so because the consumption, resulting intoxication, and injury-producing conduct are foreseeable intervening causes, or at least the injury-producing conduct is one of the hazards which makes such furnishing negligent." 486 P.2d at 159.

Judge Prather's dissent in Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969), criticizes the common law rule:

"Some courts cling steadfastly to the myth that it is the drinking and not the sale that is the proximate cause of the ensuing injury and are wearing blinders when it comes to observing the ordinary course of human events. It is quite ordinary to observe that persons who commence drinking intoxicants pass through various stages from complete sobriety to incapacitating intoxication and unconsciousness. It is quite observable that the first small amounts of liquor do not affect the person's ability to control himself and his actions. When the person has imbibed sufficient liquor that the effects thereof are becoming obvious to the ordinary person, the imbiber is still able to control himself and his actions sufficiently to avoid injury to others. If the imbiber continues to drink intoxicants, however, his condition will worsen until he reaches the point that he can not control his thought or muscular processes. After the first signs of apparent and obvious intoxication have begun to show on a person who is drinking, it is within the knowledge and experience of nearly all people that such person should not indulge in any further use of intoxicants until his body has rid itself of that which he has already imbibed. When so viewed, I perceive no difference in regarding the sale of further intoxicants to one already drunk as a proximate cause of ensuing injuries and in those cases wherein the sale of firearms to minors or incompetents, the sale of explosives to minors or incompetents, the sale of dangerous drugs to those known to be addicted, or the manufacture and release upon the market of dangerously defective commodities are held to form a basis for liability. The underlying principle of all of these cases is that the seller is sending out into the public a thing of danger which a reasonably prudent person under like circumstances would apprehend would be likely to cause injury to someone else.

When most people walked and few had horses or carriages, or even in the days when the horse and buggy was a customary mode of travel, it may have been that the common law rule of non-liability arising from the sale of liquor to an intoxicated person was satisfactory. But the situation then and the problem in today's society of the imbiber going upon the public highways and operating a machine that requires quick response of mind and muscle and capable of producing mass death and destruction are vastly different." 462 P.2d at 64-65.

In addition to Vesely v. Sager, supra, other courts have held that the sale of alcoholic beverages may be a proximate cause of the injury to a third person and that liability may be imposed upon the vendor under common law doctrines. Waynick v. Chicago's Last Department Store, 269 F.2d 322 (7th Cir. 1959), cert. denied 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (1960); Deeds v. United States, 306 F.Supp. 348 (D.Mont.1969); Prevatt v. McClennan, 201 So.2d 780 (Fla.Dist.Ct.App.1967); Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966); Pike v. George, 434 S.W.2d 626 (Ky.1968); Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d...