Lopez v. Maez

• Citation: 651 P.2d 1269,98 N.M. 625,1982 NMSC 103
• Decision Date: 13 September 1982
• Docket Number: No. 14203,14203
• Parties: Garcedon LOPEZ, Personally and Garcedon Lopez as the Personal Representative of Julia Lopez, Deceased, Ruben Lopez, Deceased, Lamencita Lopez, Deceased, and Garcedon Lopez as the Next Friend of Michele Lopez, Marisa Lopez, and Angela Lopez, Petitioner, v. Steven A. MAEZ and Alfonso E. Martinez, Respondents.
• Court: Supreme Court of New Mexico

Page 1269

651 P.2d 1269

98 N.M. 625

Garcedon LOPEZ, Personally and Garcedon Lopez as the

Personal Representative of Julia Lopez, Deceased, Ruben

Lopez, Deceased, Lamencita Lopez, Deceased, and Garcedon

Lopez as the Next Friend of Michele Lopez, Marisa Lopez, and Angela Lopez, Petitioner, v. Steven A. MAEZ and Alfonso E. Martinez, Respondents.

No. 14203.

Supreme Court of New Mexico.

Sept. 13, 1982.

Rehearing Denied Oct. 4, 1982.

D'Angelo, McCarty & Vigil, Donald D. Vigil, Albuquerque, for petitioner

Jones, Gallegos, Snead & Wertheim, Charles A. Purdy, Santa Fe, for respondents.

OPINION

RIORDAN, Justice.

Plaintiff, Garcedon Lopez (Lopez) brought this action on behalf of himself and his family, alleging that defendant, Alfonso Martinez (Martinez), a liquor licensee, was negligent by selling intoxicating liquor to defendant, Steven Maez (Maez), who subsequently caused an automobile collision in which damages claimed by Lopez were sustained. The trial court dismissed Lopez' complaint as to Martinez for failure to state a claim upon which relief could be granted. N.M.R.Civ.P. 12(b)(6), N.M.S.A.1978 (Repl.Pamp.1980). The Court of Appeals reluctantly affirmed the trial court, citing Marchiondo v. Roper, 90 N.M. 367, 563 P.2d 1160 (1977) and Hall v. Budagher, 76 N.M. 591, 417 P.2d 71 (1966), which held that there is no tavernkeeper's liability in favor of third parties who may be damaged by the negligent sale of intoxicating liquor by tavernkeepers to inebriated customers. We reverse the Court of Appeals and overrule the cases of Marchiondo v. Roper, supra and Hall v. Budagher, supra.

The issues on appeal are:

I. Whether a judicial recognition of tavernkeepers' civil liability through the extension of common law negligence principles would invade the legislative province.

II. Whether common law negligence principles impose civil liability on tavernkeepers who reasonably could have foreseen that the continuous serving of an intoxicating liquor to an inebriated patron could result in harm to a third party.

III. Whether judicial recognition of civil liability should be applied retroactively to the case at bar.

In deciding whether Lopez' complaint stated a cause of action upon which relief could be granted, we must accept as true all the facts that were pled. McCasland v. Prather, 92 N.M. 192, 585 P.2d 336 (Ct.App.1978). The allegations in Lopez' complaint are that on August 6, 1978, Martinez, a liquor licensee, doing business as "Al's Drive-In Package Store," a/k/a "Al's Bar" and/or "Alfonsito's Bar", furnished intoxicating liquor to Maez while he was visibly intoxicated. After leaving Martinez' business, Maez, while still in an intoxicated state, negligently collided his vehicle with the vehicle driven by Lopez. As a result of the accident, Lopez' wife and two of their children died, Lopez' two and one-half year old daughter suffered extensive injuries and has remained in a coma, and Lopez and his other two minor children suffered injuries. Lopez alleges that Martinez had a duty to refrain from the sale of intoxicating beverages to persons who are visibly intoxicated and that Martinez breached that duty. Therefore, Lopez asks that Maez and Martinez be held jointly and severally liable for damages that were sustained in the accident. ¹

I. Judicial Recognition

In the 1966 case of Hall v. Budagher, supra, we first addressed the issue of whether a seller of intoxicating liquor can be held liable for injuries or damages to a third party which were caused by the acts of an intoxicated person to whom a sale of liquor had been made. We held that because New Mexico did not have a Dramshop or Civil Damage Statute and because there was no recognition of such a liability at common law, no action could be maintained. We stated that it was within the province of the legislature to impose such a liability. In 1977, the same issue was again addressed in Marchiondo v. Roper, supra, and the same result was reached; nevertheless, we stated that "[w]e do not, however, feel that it would be improper for this Court to address this issue in the future if the Legislature chooses not to act." Id. 90 N.M. at 369, 563 P.2d at 1162. We believe that the time has come for this Court to address this issue. We now hold that there is a duty imposed upon persons selling or serving intoxicating liquor to the public. Breach of this duty may result in liability being determined and damages being imposed.

At common law, it was not a tort to either sell or give intoxicating liquor to a strong and able-bodied man. Cruse v. Aden, 127 Ill. 231, 20 N.E. 73 (1889); 45 Am.Jur.2d Intoxicating Liquors Sec. 553 (1969). Therefore, the common law imposes no liability on the seller of intoxicating liquor, for damages that resulted from the intoxication of a patron either on the theory of a direct wrong or negligence. ² Hyba v. C. A. Horneman, Inc., 302 Ill.App. 143, 23 N.E.2d 564 (1939); Cruse v. Aden, supra. The reason generally given for this rule was that the proximate cause of the injury was not the furnishing of the liquor, but the drinking of it. Comment, New Common Law Dramshop Rule, 9 Clev.Mar.L.Rev. 302 (1960). Another view was that even if the sale or service of liquor were found to have caused the patron's intoxication, then the later injury to another person was thought to be an unforeseeable result of the furnishment of the liquor. Ono v. Applegate, 62 Hawaii 131, 612 P.2d 533 (1980). In view of the common law, many states enacted Dramshop or Civil Damage Statutes. ³ A typical statute states:

Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. * * *

Ill.Rev.Stat. ch. 43, Sec. 135 (1979). Other states, by reason of their legislature's failure to enact such a statute, have imposed liability on vendors of liquor under common law negligence principles. Ono v. Applegate, supra; Wiska v. St. Stanislaus Social Club, Inc., 7 Mass.App. 813, 390 N.E.2d 1133 (Ct.App.1979); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959).

New Mexico's Common Law

On February 2, 1848, the United States acquired New Mexico from Mexico by the Treaty of Guadalupe Hidalgo. Common law was not recognized by Mexico, therefore, it was not in existence in New Mexico prior to its cession to the United States. For common law to be adopted within the territory, it would require a specific enactment by Congress or by the Territorial Legislature. Congress never so legislated. However, it is contended that the Territorial Legislature in 1851 adopted the common law of England as the rule and practice in criminal cases. Ex Parte DeVore, 18 N.M. 246, 136 P. 47 (1913). Boddy v. Boddy, 77 N.M. 149, 420 P.2d 301 (1966), stated that New Mexico adopted the common law and such British statutes of a general nature that do not conflict with our Constitution or specific statutes as enforced at the time of America's separation from England and that these laws and statutes are binding as rules of practice and decision in the courts of this state. This has also been codified in Section 38-1-3, N.M.S.A.1978, which states:

In all the courts in this state the common law as recognized in the United States of America, shall be the rule of practice and decision.

Therefore, the common law as recognized by the United States is the rule of practice and decision in New Mexico, except if it has been superceded or abrogated by statute or constitution or held to be inapplicable to conditions in New Mexico. Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938).

As previously stated, the common law allowed no remedy for damages sustained to a third party as a result of a tavernkeeper's sale of intoxicating liquor to an inebriated customer whose acts caused the third party's damages. Because a common law doctrine is judicially created; it is within the court's province to change a common law doctrine if it is unwise. Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App.), cert. denied, 84 N.M. 592, 506 P.2d 336 (1973). Merely because a common law doctrine has been in effect for many years, it is not rendered invulnerable to judicial attack once it has reached a point of obsolescence. Hicks v. State, supra.

" 'A rule which in its origins was the creation of the courts themselves, and was supposed in the making to express mores of the day, may be abrogated by the courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience.'

Cardozo, The Growth of the Law 136-37 (1924)."

Id. 88 N.M. at 592, 544 P.2d at 1157 (quoting Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 602, 305 A.2d 877, 886 (1973)). A common law doctrine which developed in the horse and buggy days may be out of tune with today's society. The serious danger to the public caused by drunken drivers operating automobiles on public roadways is now a matter of common knowledge that was not experienced by the public when the common law doctrine of denying third parties' recovery against tavernkeepers was developed. Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970). ⁴

New Mexico's appellate courts in a number of cases, have declined to adhere to ancient common law doctrines when those doctrines became out of tune with today's society. In Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), we held that the contributory negligence rule had long since reached a point of obsolescence. Therefore, we recognized the doctrine of comparative negligence as the law of this state. Judge Walters in her opinion stated, "since the 'rule is not one made or sanctioned by the legislature, but ... depends for its origins and continued viability upon the common law,' it is a rule peculiarly for the courts to...