McClellan v. Tottenhoff, 5830

Citation666 P.2d 408
Decision Date28 June 1983
Docket NumberNo. 5830,5830
PartiesBilly 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).
CourtUnited States State Supreme Court of Wyoming

Donald J. Sullivan, Cheyenne, for appellants.

Richard C. Hopkins of Guy, Williams, White & Argeris, and John B. Rogers, Cheyenne, for appellees.


BROWN, Justice.

Appellant Billy W. McClellan, individually and as administrator of the estate of Chad W. McClellan, and appellant State Farm Mutual Automobile Insurance Company sued appellee Mary Jane Tottenhoff, individually and doing business as Tody's Liquors, and appellee Michael 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.

" * * * [T]here must be some proximate connection between the wrong done and the damage claimed to result from it, that the two must be sufficiently conjoined so as to be 'concatenated as cause 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.

and effect,' as often said. Had it not been for the drinking of the liquor, after the sale, which was a secondary or intervening cause co-operating to produce the fatal result, and was the act of deceased, not of defendants, the sale itself would have proved entirely harmless. Hence it cannot be said that the wrongful act of the defendants, in making sale of the liquor, caused the death of King; but rather his own act in drinking it. * * * " King v. Henkie, supra at 122.

"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:

"The legislature of Wyoming has not seen fit to change the common law rule as it applies in this case. Whether legislation in the nature of a dramshop act or civil damage statute should be included as a part of our liquor control code is within the province of the legislature." 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 "The writer has oft been at odds with the theory that when the courts help create an 'Aegean stable' the legislature has the sole responsibility for cleaning up the mess * * *. The writer freely concedes the importance, necessity, and strength of the doctrine of stare decisis * * * but is unable to utilize this doctrine as a justification for the continuance of an unfair and improper rule which operates to the detriment of those who may suffer tortious injury * * *."

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:

" '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." * * * ' " 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. See Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980); and Rappaport 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 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 a statute created a duty, but it went on to say that in the absence of special statutory provision, the general principles of common law negligence should be applied to cases involving intoxicating liquor. 4

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...

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