Moore v. Riley

• Decision Date: 11 December 1972
• Docket Number: No. 56664,No. 1,56664,1
• Citation: 487 S.W.2d 555
• Parties: Roger L. MOORE, Plaintiff-Appellant, v. Sally RILEY, Defendant, and Martco, Inc. d/b/a The End Zone, Defendant-Respondent
• Court: Missouri Supreme Court

Page 555

487 S.W.2d 555

Roger L. MOORE, Plaintiff-Appellant, v. Sally RILEY, Defendant and Martco, Inc. d/b/a The End Zone, Defendant-Respondent.

No. 56664.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1972.

S. W. Longan, III, Meise, Cope, Longan & Fullerton, Kansas City, for plaintiff-appellant.

Norman O. Sanders, C. Thomas Carr, Sheridan, Sanders, Carr & White, Kansas City, for defendant-respondent.

WELBORN, Commissioner.

Appeal from judgment adverse to plaintiff on defendant's motion to dismiss cause of action for $100,000 damages for personal injury for an assault and battery upon plaintiff.

At around midnight on October 7, 1968, Sally Riley, then 20 years and 5 months of age, entered the End Zone Lounge in Kansas City. The End Zone Lounge was the trade name in which Martco, Inc., operated a business for sale of liquor by the drink under a permit issued by the City of Kansas City. Miss Riley was with Floyd Dixon. At around 1:00 A.M., Dixon got into an argument with two other patrons of the End Zone. Ed Lothamer, the manager, asked Dixon and the two other men to leave. They went outside and continued their argument in a driveway area 'connected to The End Zone.' Plaintiff Roger Moore was also a patron of the End Zone at the time and knew Dixon. Shortly after Dixon left the lounge, Moore, who had not been involved in the argument, left. He saw Dixon in the driveway and made a remark to him, advising him not to get in a fight. Words were exchanged between Dixon and Moore and blows were also struck. Two friends of manager Lothamer, Mike Hudock and Fred Arbanas, grabbed Moore and Dixon and Lothamer came out and told them not to start a fight. When Dixon and Moore were released, they again started fighting. About this time, Sally Riley came out of the bar. Arbanas handed her a glass and again went to break up the fight. He and Hudock again did so and Moore ended up sitting on the curbing of the driveway. While he was sitting there, Sally Riley approached him and threw the glass in Moore's face, breaking the glass and cutting his eyes.

Moore filed a two-count petition for damages for the injuries he sustained. The first count, not here involved, sought damages from Miss Riley. Default judgment for the plaintiff was entered on that count. The second count sought damages from Martco, Inc., on the grounds that the injuries plaintiff sustained were directly contributed to be caused by the negligent actions and omissions of agents of Martco, Inc., in combination with the acts of Sally Riley. The specific acts or omissions charged against Martco, Inc., were violations of three ordinances of the City of Kansas City: § 4.26 making it unlawful for a person under the age of 21, with exceptions not here important, to enter the premises of a permittee holding a sales-by-drink permit; § 4.94 making it unlawful for the holder of a sales-by-drink permit to permit a person under the age of 21 to enter or linger about the licensed premises unless accompanied by either parent or legal guardian; and § 4.103 prohibiting a permittee from allowing improper disturbances or brawls on the licensed premises.

The matter was presented to the trial court on a motion to dismiss, at which counsel for plaintiff stated to the court the facts and evidence upon which he intended to rely in proof of his claim. At the conclusion of such presentation the trial court sustained defendant's motion to dismiss Court II of the petition with prejudice. This appeal followed.

The theory of plaintiff is that in permitting Sally Riley, a person under the age of 21, to remain on the premises of the lounge, the permittee violated the city ordinances set out in the petition and that such violation was negligence per se which directly contributed to produce the injuries plaintiff sustained when struck by the glass thrown by Miss Riley.

The question of violation of statutes and ordinances regulating the operation of the business of selling intoxicating liquors as a basis for civil liability of liquor vendors for acts of their patrons has received considerable attention in recent years. The traditional common law concepts which have tended to insulate the vendor from liability have been re-examined and frequently rejected by the courts, without legislative intervention in the form of so-called 'Dramshop Acts.' The case of Rappaport v. Nichols, 1959, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821, is generally regarded as the landmark decision representing a change in the common law theory of nonliability of the liquor supplier.

In 1971, the Supreme Court of California, in the case of Vesely v. Sager, 5 Cal. 3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, concluded that '(t)he traditional common law rule (which) would deny recovery (against a vendor of alcoholic beverages for providing alcoholic drinks to a customer, who, as a result of intoxication injures a third person) on the ground that the furnishing of alcoholic beverages is not the proximate cause of the injuries suffered by the third person * * * is patently unsound * * *.' 95 Cal.Rptr. 625, 486 P.2d 153. The opinion examines at length decisions of other states in which a similar conclusion was reached. Among the cases cited is Elder v. Fisher, 1966, 247 Ind. 598, 217 N.E.2d 847, upon which appellant has placed major reliance here.

In Elder, plaintiff was injured as a result of an automobile collision with a vehicle driven by a minor to whom the defendant had sold intoxicants in violation of Indiana statutes. The court concluded that the statute involved was 'intended to protect against the possible harm resulting from the use of intoxicating liquor by those to whom it was not to be sold.' Finding that the statute was sufficiently broad in scope to cover the type of injury before it, the court concluded that 'an allegation of violation of this statute is an allegation of negligence.' 217 N.E.2d 851. The court further concluded that the proximate cause issue in such case was for the jury. 'Certainly it is for the jury to determine whether or not the injurious consequences that resulted from negligence are such as ought reasonably to have been foreseen, or whether an intervening cause was such as to break the causal connection.' 217 N.E.2d 852(10, 11).

In a case involving sale to an adult rather than a minor, the Supreme Court of Wisconsin by a 4 to 3 vote in Garcia v. Hargrove, 1970, 46 Wis.2d 724, 176 N.W.2d 566, declined to abrogate the common law rule of nonliability of the vendor of intoxicants for the injuries caused by his customers while intoxicated. A majority of that court concluded that, on the basis of policy considerations, the common law rule should not be changed.

In Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 1971, 258 Or. 632, 485 P.2d 18, the court held that a statute prohibiting sale of intoxicating liquor to minors was designed 'to protect minors from the vice of drinking alcoholic beverages; it was not the purpose of the statute to protect third persons from injury resulting from the conduct of inebriated minors or of imposing liability upon a person contributing to a minor's delinquency by furnishing him with alcohol.' 485 P.2d 21(1). The court held that a charge of negligence in an action by a passenger injured in a collision involving an auto driven by an intoxicated minor could not properly be based upon a violation of the statute. The court did, however, hold that a common law action for negligence was stated against the organization furnishing the liquor by an allegation that the driver was a minor and that the organization knew that he would...