McClellan v. Tottenhoff
Decision Date | 28 June 1983 |
Docket Number | No. 5830,5830 |
Citation | 666 P.2d 408 |
Parties | Billy W. McCLELLAN, Individually and as Administrator of the Estate of Chad W. McClellan, Deceased, and State Farm Mutual Automobile Insurance Company, Appellants (Plaintiffs), v. Mary Jane TOTTENHOFF, Individually and Doing Business as Tody's Liquors and Michael "Mike" Buffington, Appellees (Defendants). |
Court | Wyoming Supreme Court |
Donald J. Sullivan, Cheyenne, for appellants.
Richard C. Hopkins of Guy, Williams, White & Argeris, and John B. Rogers, Cheyenne, for appellees.
Before ROONEY, C.J., and RAPER, *THOMAS, ROSE and BROWN, JJ.
AppellantBilly W. McClellan, individually and as administrator of the estate of Chad W. McClellan, and appellantState Farm Mutual Automobile Insurance Company sued appelleeMary Jane Tottenhoff, individually and doing business as Tody's Liquors, and appelleeMichael Buffington, an employee.The complaint alleged that appellees had negligently sold liquor to a minor at a drive-in area, that the minor became intoxicated and killed Chad W. McClellan in an automobile accident, and that the sale of the liquor was a proximate cause of the accident.The district court granted an order dismissing the complaint for failure to state a claim.The court had no choice but to dismiss, based on our holding in Parsons v. Jow, Wyo., 480 P.2d 396(1971).The sole issue on appeal is whether a complaint against a vendor unlawfully selling liquor to a minor who becomes intoxicated and injures a third party states a claim for relief in Wyoming.
We reverse.
Under the traditional common law a cause of action against a liquor vendor for injuries to a third person by a consumer of alcohol was unknown.The basis for refusing to impose liability usually rested on the theory that it was the drinking of liquor, not the sale, which was the proximate cause of the injury."[T]here may be sales without intoxication, but no intoxication without drinking."Collier v. Stamatis, 63 Ariz. 285, 290, 162 P.2d 125, 127(1945).The earliest case which we found stating the common law rule was King v. Henkie, 80 Ala. 505, 60 Am.Rep. 119(1886).The case dealt with the death of the consumer, but the same rationale applied to a third party.If an injury to the consumer was too remote, injury to a third person was assuredly so.
* * * "King v. Henkie, supra at 122.
This court has cursorily ruled that a third party injured by a consumer of liquor has no cause of action against a liquor vendor because there is no proximate cause.Parsons v. Jow, supra at 397.
"We think it cannot be denied there was no cause of action at common law against a vendor of liquor in favor of one injured by a vendee who becomes intoxicated--this for the reason that the proximate cause of the injury was deemed to be the patron's consumption of liquor and not its sale. * * * "
We also said in Parsons v. Jow, supra, at 397-398:
1
Section 12-5-502, W.S.1977, does provide a claim for relief against a liquor vendor in favor of a limited group of injured third parties.Basically, it allows recovery for loss of support to a dependent when a licensed vendor sells alcohol, after a written notice from a dependent or spouse, to an habitual drunkard who is neglecting to provide support.It also allows parents or guardians to recover against a licensed vendor who sells to a child or ward after written notice.
We hereby overrule Parsons v. Jow, supra.We think the statements from that case concerning the province of the legislature and proximate cause misconstrue the nature of common law.As pointed out in Choman v. Epperley, Wyo., 592 P.2d 714(1979), Wyoming's adoption of the common law under § 8-1-101, W.S.1977, was not an adoption of a set code of law.2
" ' * * * The common law of England, as modified by judicial decisions, so far as the same is of a general nature and not inapplicable * * * are the rule of decision in this state when not inconsistent with the laws thereof, and are considered as of full force until repealed by legislative authority.' "Choman v. Epperley, supra, at 716.
We further said in Choman v. Epperley, supra, that we must decide cases in accordance with decisions subsequent to the times of James I, but that we are at liberty to follow comparatively recent decisions, or to base our decision on a fundamental principle underlying all the other decisions.
This court said much the same thing in Collins v. Memorial Hospital of Sheridan County, Wyo., 521 P.2d 1339, 1341(1974), when it abolished municipal immunity to the extent that the municipal entity was covered by insurance.
The rule that there is no cause of action when a vendor sells liquor to a consumer who injures a third party was created by the courts.We see no reason to wait any longer for the legislature to abrogate it.Common law created by the judiciary can be abrogated by the judiciary.As an Arizona appellate court said, the common law " * * * is not a thing of chiseled marble to be left unchanged for centuries."Lewis v. Wolf, 122 Ariz.App. 567, 596 P.2d 705, 706(1979), quoting Mr. Justice Douglas:
" " * * * '3
Courts which base their finding of a cause of action against a liquor vendor using the common law of negligence state that a liquor vendor owes the same duty to the whole world as does any other person.SeeAlegria v. Payonk, 101 Idaho 617, 619 P.2d 135(1980);andRappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821(1959).Once the general duty to use reasonable care is acknowledged, then courts focus their attention on the foreseeability of the resulting harm to establish proximate cause.We think this is a sensible and just approach.Henceforth, cases involving vendors of liquor and injured third parties will be approached in the same manner as other negligence cases.
Negligence consists of a duty on the part of the defendant and a violation of the duty which proximately causes injury to the plaintiff.ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925(1981).The question whether a duty exists is one of law.Dubus v. Dresser Industries, Wyo., 649 P.2d 198(1982).The Wyoming common law of negligence imposes a duty on the defendants to exercise the degree of care required of a reasonable person in light of all the circumstances.Ruhs v. Pacific Power & Light, 671 F.2d 1268(10th Cir.1982).
Illinois, Idaho, Indiana, Minnesota, New Jersey, and Oregon recognize a common law negligence cause of action against a liquor vendor, although some of them do so in a circuitous way.Some of these cases concerned the sale of alcohol to already intoxicated persons, but the same rationale would apply to sales to minors.
In Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292(1963), the Illinois court applied the common law of Indiana.It ruled that the Illinois dramshop act provided the sole remedy to someone injured in Illinois, but that the act did not give rise to a cause of action when the intoxication occurred in Illinois and the resulting accident occurred in another state.It went on to say that the negligence count could be interpreted as stating a cause of action in tort based either on a duty imposed on the defendants by the liquor control act or on a duty imposed on every person not to do an act, the consequences of which were known to him or could reasonably be anticipated and which resulted in harm to another.The court held that had there been no dramshop act in Illinois, there would be a common law cause of action, either because of violation of a statute or because of violation of a common law duty.The court then decided that, since the question had never been ruled upon in Indiana, it would presume that the common law of Indiana was the same as in Illinois.It ruled that there was a common law cause of action in Illinois, and that, as far as it was concerned, there was also one in Indiana.
The Indiana court in Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847(1966), noted that it was not bound by the Illinois decision in Colligan v. Cousar, supra.It decided that...
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