Miller v. GASTRONOMY, INC.

• Decision Date: 25 February 2005
• Docket Number: Case No. 20040233-CA.
• Citation: 110 P.3d 144,2005 UT App 80
• Parties: Allen D. Miller and Beverley B. Miller, on behalf of the Estate of Robert Miller, deceased, Plaintiffs and Appellants, v. Gastronomy, Inc., a Utah corporation, Defendant and Appellee.
• Court: Utah Court of Appeals

2005 UT App 80

110 P.3d 144

Allen D. Miller and Beverley B. Miller, on behalf of the Estate of Robert Miller, deceased, Plaintiffs and Appellants, v. Gastronomy, Inc., a Utah corporation, Defendant and Appellee.

Case No. 20040233-CA.

Utah Court of Appeals.

Filed February 25, 2005.

This opinion is subject to revision before publication in the Pacific Reporter.

Heather M. Sneddon and Nathan B. Wilcox, Salt Lake City, for Appellants.

Robert L. Stevens, Salt Lake City, for Appellee.

Before Judges Bench, Davis, and Greenwood.

OPINION

GREENWOOD, Judge:

¶1 Plaintiffs Allen D. and Beverly B. Miller, parents of Robert Miller (Decedent), appeal the trial court's grant of Defendant Gastronomy, Inc.'s motion for judgment on the pleadings in Plaintiffs' wrongful death suit. We affirm.

BACKGROUND¹

¶2 On August 10, 2002, Decedent dined at the Market Street Grill, a Defendant-owned restaurant, where he consumed four glasses of wine in approximately forty minutes. Following his meal, Decedent went next door to the Market Street Oyster Bar, also a Defendant-owned restaurant, where Defendant's employees continued to serve Decedent wine. In total, Decedent consumed nine glasses of wine between approximately 3:04 pm and 5:18 pm; eight of those beverages were served within an hour and three-quarters. Furthermore, Decedent was visibly intoxicated while being served.

¶3 Roughly thirty minutes after leaving Defendant's premises, Decedent lost control of his car while driving up Parley's Canyon. Decedent died in the resulting single car accident. An autopsy revealed that Decedent's vitreous blood alcohol concentration was .22 grams.²

¶4 Plaintiffs later filed a wrongful death action against Defendant, alleging negligence and negligence per se. Defendant filed a motion for judgment on the pleadings. After oral argument, the trial court granted Defendant's motion, ruling that Plaintiffs' claim was preempted by the Alcoholic Beverage Liability Act (Dramshop Act), see Utah Code Ann. §§ 32A-14a-101 to -105 (2003),³ and that "under common law there can be no claim against a liquor provider for a person who, as a result of his voluntary intoxication, injures himself or causes his own death." Thus, the trial court dismissed Plaintiffs' complaint with prejudice. Plaintiffs appeal.

ISSUES AND STANDARD OF REVIEW

¶5 Plaintiffs raise three issues on appeal: (1) whether Utah recognizes a common-law cause of action by first parties against a dramshop for injuries stemming from the patron's voluntary intoxication; (2) whether, if such a cause of action exists, it is preempted by the Dramshop Act; and (3) whether a dramshop is negligent per se for violating the Alcoholic Beverage Control Act (ABCA), see Utah Code Ann. § 32A-12-204 (2003),⁴ by serving alcohol to an intoxicated patron.

¶6 "The grant of a motion for judgment on the pleadings is reviewed under the same standard as the grant of a motion to dismiss, i.e., we affirm the grant of such a motion only if, as a matter of law, the plaintiff could not recover under the facts alleged." Thimmes v. Utah State Univ., 2001 UT App 93,¶4, 22 P.3d 257 (quotations and citation omitted). As all three issues present questions of law, we review for correctness. See id.

ANALYSIS

I. Common-Law Dramshop Liability

¶7 Plaintiffs, as Decedent's heirs, may recover under Utah's wrongful death act, see Utah Code Ann. § 78-11-7 (2002), if Decedent, had his injuries not proven fatal, could himself have recovered. See Francis v. Southern Pac. Co., 162 F.2d 813, 816 (10th Cir. 1947), aff'd, 333 U.S. 445 (1948). To wit, Plaintiffs contend that there exists at common law a first-party cause of action against dramshops for injuries sustained by the imbiber. Defendant counters that Utah courts have never recognized such an action, and that to do so would run counter to the rule espoused in the majority of jurisdictions.

¶8 Plaintiffs rely on Rees v. Albertson's, Inc., 587 P.2d 130 (Utah 1978), and Yost v. State, 640 P.2d 1044 (Utah 1981), for the proposition that a first-party cause of action against a dramshop exists at common law.

¶9 In Rees, the plaintiff, a minor who purchased alcohol from the defendant grocery store for off-premises consumption, sued the defendant for contribution for a judgment against the plaintiff, stemming from a drunk driving accident in which the inebriated plaintiff, as driver, lost control of his car, killing two and injuring one of the passengers. See 587 P.2d at 131. The court reversed the trial court's grant of the defendant's motion for summary judgment, allowing the minor tortfeasor to pursue his claim for contribution from an alcohol provider. See id. at 132-33.

¶10 Next, in Yost, the Utah Supreme Court cited Rees and affirmed a trial court's ruling of liability of a vendor who negligently provided alcohol to a minor who was subsequently injured when his intoxicated friend rolled the truck in which they were riding. See Yost, 640 P.2d at 1045-48. In its decision, the court declined to incorporate statutory dramshop provisions into the common law, noting that "at common law . . . the drinking of the liquor, and not the furnishing of it, is the proximate cause of the injury." Id. at 1046 n.2 (citing 45 Am. Jur. 2d Intoxicating Liquors § 553 and cases cited therein). Notwithstanding that observation, the court affirmed the trial court's apportionment of negligence among the parties. See id. at 1048 n.10.

¶11 Ultimately, Yost and Rees represent judicially created exceptions to the general prohibition of dramshop liability.⁵ Indeed, the recent Utah Supreme Court case, Miller v. United States, 2004 UT 96, 104 P.3d 1202, includes the exceptions created in Yost and Rees in its exhaustive list of common-law dramshop liability exceptions.

For example, we have permitted the allocation of a liquor provider's liability to an injured third party, contribution from a commercial provider to an intoxicated minor tortfeasor, and a claim against a commercial provider of alcohol to a minor in quantities greater than could be consumed by the minor himself when the minor's intoxicated friend injured a third party.

Id. at ¶12. Noticeably absent from this enumeration is any reference to a first-person cause of action against a dramshop.

¶12 As noted in Yost, proximate causation is the fatal flaw in a first-party action against a dramshop. See 640 P.2d at 1046 n.2. The proximate cause of the intoxicated person's injuries is the drinking of the alcohol, not the furnishing of it. See id. Thus, Plaintiffs' claim would fail under common law for want of proximate causation.

¶13 Moreover, in Utah, it is well settled that no third-party cause of action against a dramshop exists at common law. See Miller, 2004 UT 96 at ¶12 (ruling that "subject to the exceptions created in our case law, Utah categorically rejects a common law right by injured third parties to maintain an action against a dramshop"); Adkins v. Uncle Bart's, Inc., 2000 UT 14,¶18, 1 P.3d 528 (concluding that "a third-party cause of action against dramshops [does] not exist in this state at common law"). In light of our jurisprudence denying third parties a common-law cause of action against dramshops when injured by a dramshop patron, it would be illogical to recognize such an action by first parties who injure themselves.

¶14 Furthermore, the majority of jurisdictions that have addressed this issue resolved that no first-person cause of action against an alcohol provider exists at common law.⁶ See, e.g., Wright v. Moffitt, 437 A.2d 554, 555 (Del. 1981) (declining to recognize a first-party action against dramshops at common law); Bertelmann v. Taas Assocs., 735 P.2d 930, 933 (Haw. 1987) (rejecting "the contention that intoxicated liquor consumers can seek recovery from the bar or tavern which sold them alcohol"); Jackson v. PKM Corp., 422 N.W.2d 657, 659-60 (Mich. 1988) (noting that Michigan's dramshop act does not take exception with the common-law bar of first-party claims against dramshops); Cuevas v. Royal D'Iberville Hotel, 498 So. 2d 346, 348 (Miss. 1986) (determining that the legislature did not "intend[] to impose liability upon a dispenser of intoxicants to an adult individual . . . who voluntarily consumes intoxicants and then, by reason of his inebriated condition, injures himself"); Trujillo v. Trujillo, 721 P.2d 1310, 1312 (N.M. Ct. App. 1986) (acknowledging no cause of action for an intoxicated person "against the tavern keeper for injuries sustained by the patron as a result of the unlawful service or sale of alcohol"); Sheehy v. Big Flats Cmty. Day, Inc., 541 N.E.2d 18, 22 (N.Y. 1989) (refusing "to recognize a common-law cause of action against providers of alcoholic beverages in favor of persons injured as a result of their own voluntary intoxication"); Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 423 S.E.2d 72, 72 (N.C. 1992) (barring recovery in wrongful death action against seller of alcohol by estate of decedent killed while driving intoxicated); Smith v. 10th Inning, Inc., 551 N.E.2d 1296, 1298-99 (Ohio 1990) (holding that "an intoxicated patron has no cause of action against a liquor permit holder" where the off-premises injury "was proximately caused by the patron's intoxication"); Ohio Cas. Ins. Co. v. Todd, 813 P.2d 508, 512 (Okla. 1991) (concluding "the tavern owner has no liability to the intoxicated adult who voluntarily consumes alcoholic beverages to excess and sustains injuries as a result of his intoxication"); Tobias v. Sports Club, Inc., 504 S.E.2d 318, 319 (S.C. 1998) (holding "that South Carolina does not recognize a `first-party' cause of action against a tavern owner by an intoxicated adult"); Estate of Kelly v. Falin, 896 P.2d 1245, 1248 (Wash. 1995) (noting that "[t]he common law rule rejects the notion that intoxicated adults can hold commercial vendors liable for furnishing them alcohol"); White v. HA, Inc., 782 P.2d 1125, 1132 (Wyo. 1989) (joining the majority position "that the...