McIsaac v. Monte Carlo Club, Inc.

Decision Date20 September 1991
Citation587 So.2d 320
CourtAlabama Supreme Court
PartiesSheila McISAAC and John Paul Howard v. MONTE CARLO CLUB, INC., et al. 1900714.

John W. Parker and L. Bratton Rainey III, Mobile, for appellants.

M. Lloyd Roebuck of Kilborn & Roebuck, Mobile, for appellees.

MADDOX, Justice.

This is a case of first impression, involving the application of Alabama's Dram Shop Act (Ala.Code 1975, § 6-5-71), and an Alcoholic Beverage Control Board regulation prohibiting a licensee from selling intoxicating liquor to one who is visibly intoxicated. 1 The specific issue presented is whether a person who allegedly participated in drinking that led to the intoxication of another can recover damages under the provisions of the Act for injuries incurred in an accident allegedly caused by the intoxication of the other person.


Plaintiff John Paul Howard was 21 years old at the time of the accident. Plaintiff Sheila McIsaac, his mother, claimed to have been injured in person, property, or means of support on account of her son's injuries. Howard and his mother sued the Monte Carlo Club, Franco Sebasianelli, and Lamar Boutwell, pursuant to the provisions of the Alabama Dram Shop Act, § 6-5-71, Ala.Code 1975, and in the complaint, as last amended, alleged various common law causes of action and violation of the Dram Shop Act; they alleged that the defendants had sold Donnie Frank Sellers intoxicating liquor while he was already visibly intoxicated, that is, contrary to law, and that as a proximate result thereof, Howard had suffered bodily injuries.

The defendants answered the complaint and subsequently filed a motion for summary judgment on the ground that the evidence showed that Howard was in complicity with the intoxicated person, and, therefore, was barred from any recovery. The trial court granted the motion, holding that the doctrine of complicity was applicable. The propriety of that judgment is the question presented on this appeal.

The evidence introduced in support of the motion for summary judgment, and that introduced in opposition thereto, indicate that on July 8, 1989, Sellers and Howard, went to the Monte Carlo Club, a lounge in the City of Mobile, at approximately 12:30 a.m. While they were in the Club, Sellers spent between $80.00 and $100.00 on the purchase of liquor for his consumption. Sellers and Howard left the Club at approximately 3:30 a.m., with Sellers operating his automobile. Howard was a passenger.

Shortly thereafter, a police officer pulled alongside Sellers and directed him to pull off the road. After stopping in a parking lot pursuant to the officer's instructions, Sellers sped off. The evidence is disputed regarding all that took place while the car was stopped. The defendants contend that the evidence shows that Howard participated in the decision to leave the scene. In any event, the police officer chased Sellers, who, according to the evidence, reached a speed in excess of 100 mph. During the chase, Sellers failed to make a turn and ran off the road, and in the ensuing accident Howard suffered severe injuries.

In entering a summary judgment for the defendants, the trial court made the following conclusions of law:

"This doctrine [of complicity], which has not been addressed in Alabama, is a judicially created exception to liability under the Dram Shop Act. It is explained as follows in Sterenberg v. Sir Loin, Inc., 183 Ill.App.3d 631 , 539 N.E.2d 294 (1989) " 'Under the doctrine of complicity, one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery under the Dram Shop Act. One contributes to or procures an inebriate's intoxication by causing or encouraging the drinking which caused the intoxication or by willingly participating to a material and substantial extent in the drinking which led to the inebriate's intoxication. A plaintiff's willing participation is not measured by the amount of drinking in which [he] indulged, but by whether [he] voluntarily joined in the drinking activities of the person who became intoxicated and inflicted the injury. Willing participation also does not require that the plaintiff supply or purchase the liquor consumed. A plaintiff can willingly participate by encouraging or providing significant companionship in the drinking that caused the intoxication. Thus, if a plaintiff embarks with another on a tour of taverns and joins in the drinking of liquor, [he] cannot recover under the Dram Shop Act for injuries caused by the alleged intoxication of [his] companion.' (Citations omitted)."

As we understand the doctrine of complicity, it precludes recovery for a plaintiff who willingly participated to a material and substantial extent in the drinking that led to the inebriate's intoxication. Sterenberg v. Sir Loin, Inc., 183 Ill.App.3d 631, 131 Ill.Dec. 941, 539 N.E.2d 294 (1989). Complicity, as noted by the trial court, has its genesis in judicial decisions. Nelson v. Araiza, 69 Ill.2d 534, 538, 14 Ill.Dec. 441, 442, 372 N.E.2d 637, 638 (1978). It is based on the premise that one who is guilty of complicity in the inebriate's intoxication should not be allowed to recover under the Dram Shop Act. Id. Allowing the plaintiff to recover would undermine the purpose of the Act--controlling abuses of the liquor trade. Id.

There seems to be a split among the jurisdictions that have considered the doctrine of complicity as to whether particular conduct shows, as a matter of law, such participation in the drinking by the person injured as to bar that person's recovery. See, Annot., "Third Person's Participating in or Encouraging Drinking as Barring Him From Recovering Under Civil Damages or Similar Acts," 26 A.L.R.3d 1112 (1965).

One of the jurisdictions adopting the doctrine of complicity based its decision on the fact that the legislation of the state consistently reflected efforts to narrow the liability of Dram Shop owners. See Nelson, 69 Ill.2d 534, 14 Ill.Dec. 441, 372 N.E.2d 637. Another court determined the statute to be only remedial in nature, serving no purpose in deterring the sale of liquor to an intoxicated patron. Craig v. Larson, 432 Mich. 346, 355-57, 439 N.W.2d 899, 903 (1989).

Howard argues that this Court should not interpret Alabama's Dram Shop Act to permit the doctrine of complicity to bar a recovery. In his brief, he states:

"The purpose of Alabama's Dram Shop Act is to prevent or deter owners of bars, or the like, from serving liquor or other intoxicating beverages to a person who is already visibly intoxicated. The legislature has intended to protect the public as a whole from such actions by bar owners. The appellants respectfully submit that there is no rational basis for denying a passenger in an automobile driven by one who is intoxicated and was continued to be served intoxicating beverages while visibly intoxicated, merely because the passenger in the automobile had done nothing more than merely participate in the drinking of liquor. One must keep in mind that the purpose of the statute is to prevent or deter bar owners from serving patrons excessive amounts of liquor or other intoxicating beverages. The adoption of the complicity doctrine or the like would afford violators of Alabama's Dram Shop Act a defense or immunity from liability, notwithstanding the bar owners' violation of the Dram Shop Act. In light of the intent of the legislature in Alabama there would appear to be no rational basis for excusing a bar owner from liability under Alabama's Dram Shop Act under the facts of this case."

He says that to adopt the reasoning of the Illinois court in Sterenberg v. Sir Loin, Inc., 183 Ill.App.3d 631, 131 Ill.Dec. 941, 539 N.E.2d 294 (1989), the case relied upon by the trial court, and one of the principal cases relied on by the defendants here, would narrow the liability of dramshop owners, and he says that Sterenberg "is the most extreme utilization of the doctrine of complicity as a defense to liability under the Dram Shop Act, and that other cases relied upon by the defendants are also based upon a narrow construction of the scope of the civil damage[s] act under consideration." 2

Howard also states that prior Alabama cases construing the Dram Shop Act show that "the Alabama legislature had the specific purpose and intent, in adopting the act, to deter drunk driving," and that "[i]n an effort to accomplish this objective, the Alabama legislature has imposed liability upon the bar owner for any injury caused by the serving of liquor to persons already intoxicated and then placing them on the public roads of Alabama." He, therefore, contends that this State has adopted the view adopted in Connecticut (Passini v. Decker, 39 Conn.Sup. 20, 467 A.2d 442 (1983)), North Dakota (Aanenson v. Bastien, 438 N.W.2d 151 (N.D.1989)), and Florida (Booth v. Abbey Road Beef & Booze, Inc., 532 So.2d 1288 (Fla.Dist.Ct.App.1988)).


We have examined cases from other jurisdictions to see how other courts have interpreted the civil damages statutes in those jurisdictions, especially relating to the defenses that may be interposed. After having examined those cases, we find that the jurisdictions that have considered the question of the defenses available to a dram shop or tavern operator are not in agreement on whether an injured person's own negligence, complicity, or assumption of risk will bar recovery. Annot., "Contributory Negligence Allegedly Contributing to Cause of Injury as Defense in Civil Damage Act Proceeding," 64 A.L.R.3d 849 (1975); cf. Zucker v. Vogt, 329 F.2d 426 (2d Cir.1964) (Federal court, construing Connecticut law, held that contributory negligence was not a defense); see also, Sanders v. Officers Club of Connecticut, 196 Conn. 341, 493 A.2d 184 (1985); contra, Powers v. Niagara Mohawk Power Corp., 132 Misc.2d 123, 503 N.Y.S.2d 516 (N.Y.Sup.Ct.1986); Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982); Martin v. Heddinger, 373 N.W.2d 486 (Iowa 1985).


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