Morris v. Farley Enterprises, Inc., s. 6013

• Decision Date: 04 March 1983
• Docket Number: Nos. 6013,6042,s. 6013
• Citation: 661 P.2d 167
• Parties: Verla MORRIS and Ted E. Morris, individually and as Personal Representative of the Estate of Elmer R. Morris, deceased, Appellants, v. FARLEY ENTERPRISES, INC., d/b/a the Pines Liquor Store, Appellee. Norman HANSON and Delores Hanson, individually and as parents on Behalf of the ESTATE OF Randy A. HANSON, a deceased minor, Appellants, v. FARLEY ENTERPRISES, INC., d/b/a the Pines Liquor Store, Appellee.
• Court: Alaska Supreme Court

Page 167

661 P.2d 167

Verla MORRIS and Ted E. Morris, individually and as Personal Representative of the Estate of Elmer R. Morris, deceased, Appellants, v. FARLEY ENTERPRISES, INC., d/b/a the Pines Liquor Store, Appellee.

Norman HANSON and Delores Hanson, individually and as

parents on Behalf of the ESTATE OF Randy A.

HANSON, a deceased minor, Appellants, v. FARLEY ENTERPRISES, INC., d/b/a the Pines Liquor Store, Appellee.

Nos. 6013, 6042.

Supreme Court of Alaska.

March 4, 1983.

A. Lee Petersen, Anchorage, for appellants Hanson.

Robert Opland, Opland, Johnston & Boedeker, Anchorage, for appellants Morris.

Timothy M. Lynch and Deidre S. Ganopole, Abbott, Lynch & Farney, Anchorage, for appellees.

Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

MATTHEWS, Justice.

On December 30, 1977 at approximately 9:30 p.m. an automobile occupied by five minors, including David Anderson, Randy Hanson and Elmer Morris, pulled up to The Pines Liquor Store in Anchorage. David Anderson, who was driving, and Randy Hanson entered the store together wherein Randy purchased a fifth of tequila for the five to drink. Randy was seventeen years old at the time.

During the course of the evening the five companions drank the entire contents of the bottle. Thereafter at approximately 2:00 a.m. David made an illegal left-hand turn and collided with another automobile. Randy and Elmer were killed in the crash. David's blood alcohol level was measured at .134% approximately ninety minutes after the collision. At the time of the accident a person with a blood alcohol level of .10% was presumed to be intoxicated. AS 28.35.033 (repealed 1980).

The parents of Randy and Elmer filed complaints against Farley Enterprises, Inc., d/b/a The Pines Liquor Store ("The Pines") seeking recovery for the wrongful deaths of their sons. They alleged causes of action based on The Pines' violation of AS 04.15.020(a) (repealed 1980), which prohibited sales of alcoholic beverages to persons under the age of nineteen years. ¹ The cases were consolidated for trial, and on April 1, 1981 the superior court granted The Pines' motion for summary judgment against both plaintiffs. The parents have appealed.

I NEGLIGENCE PER SE

In Nazareno v. Urie, 638 P.2d 671 (Alaska 1981), we held that AS 04.15.020(a) established a minimum standard of conduct and that failure to adhere to the standard so established constituted negligence per se. We relied on the Restatement (Second) of Torts § 286 (1965) which provides:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is being invaded, and

(c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

In Nazareno the plaintiff was a third person injured by an inebriate to whom the defendant had sold liquor whereas, in the case of Hanson, the victim was the customer. However, the language of Nazareno clearly suggests that the statute was designed to protect customers as well as third parties and thus that the doctrine of negligence per se should also apply to them:

[I]t is clear that the vendor is under a duty not to sell liquor where the sale creates a risk of harm to the customer or to others. See Vance v. United States, 355 F.Supp. 756, 761 (D.Alaska 1973). This conclusion flows from general principles of negligence law; every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others. In selling liquor to an intoxicated customer, where it is evident that the customer may injure himself or others as a result of the intoxication, a vendor is not acting as a reasonable person would.

Id. at 674 (emphasis added). Vance v. United States, upon which we relied in Nazareno, is a case involving injuries to a customer who became intoxicated. The court held that the doctrine of negligence per se applied and stated, referring to AS 04.15.020:

[I]t is apparent that, although the principal purpose of the statute may have been to protect innocent third parties from the negligence of an intoxicated consumer, the purpose at least in part was also to protect the consumer himself. If the consumer involved in this case were a minor rather than an alleged intoxicated person, it would be logical to conclude that the statute was enacted by the Legislature to protect minors.

355 F.Supp. at 759.

Based on the foregoing, we have no difficulty in concluding that the doctrine of negligence per se regarding violations of AS 04.15.020(a) applies to this case. Indeed, probably in light of Nazareno, The Pines does not argue that the doctrine of negligence per se does not apply here. Instead, it argues that the accident was not proximately caused by the sale of liquor and that complicity of the decedents in contributing to or encouraging the intoxication of David Anderson bars any recovery.

II PROXIMATE CAUSE

Negligent conduct may be found to be the "legal cause" of harm if the negligent act "was more likely than not a substantial factor in bringing about [the] injury" Sharp v. Fairbanks North Star Borough, 569 P.2d 178, 181 (Alaska 1977) (quoting City of Fairbanks v. Nesbett, 432 P.2d 607, 610 (Alaska 1967)); and there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. Restatement (Second) of Torts § 431(b) (1965).

In State v. Abbott, 498 P.2d 712 (Alaska 1972) we clarified the substantial factor test as follows:

Normally, in order to satisfy the substantial factor test it must be shown both that the accident would not have happened "but for" the defendant's negligence and that the negligent act was so important in bringing about the injury that reasonable men would regard it as a cause and attach responsibility to it.

498 P.2d at 727 (footnote omitted, emphasis in original). The issue for this court is thus whether reasonable persons could conclude that the deaths of Randy and Elmer would not have occurred but for the sale of alcohol to Randy and that the sale was so important in bringing about their deaths that it should be regarded as a responsible cause.

It is clear that reasonable persons could conclude that the deaths would not have occurred but for the sale. But for the sale David Anderson would have had no liquor to drink. No evidence has been presented that liquor was acquired from another source. Since David's blood alcohol level was measured at .134% approximately ninety minutes after the accident, a reasonable person could conclude that but for his consumption of alcohol he would not have made an illegal turn and collided with another automobile.

Reasonable persons could also conclude that the sale was so important in bringing about the deaths that they would regard it as a responsible cause. To meet this test, it is of course not necessary that the sale be the sole or even the predominant cause of the harm. "The wrongful conduct of a number of third persons may also be a cause of the harm, so that such third persons may be liable for it, concurrently with the actor." Restatement (Second) of Torts § 430 comment d (1965), cited with approval in Sharp, 569 P.2d at 181 n. 6. We thus conclude that the issue of substantial factor presents a question for the jury in these cases. ²

We further conclude that the wrongful conduct of Randy Hanson in providing David with the means of becoming intoxicated did not amount to a superseding cause as a matter of law and therefore did not operate to relieve The Pines of liability. In Sharp v. Fairbanks North Star Borough, 569 P.2d 178, 182 (Alaska 1977) and in Yukon Equipment Inc. v. Fireman's Fund Insurance Co., 585 P.2d 1206, 1211 (Alaska 1978), we observed that the perspective to be taken in deciding whether a superseding cause exists is one of hindsight, asking whether "looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm." Quoting Restatement (Second) of Torts § 435 (1965). In Sharp we also cited with approval Professor Prosser's position that intervening causes which lie within the scope of the foreseeable risk, or have a reasonable connection to it are not superseding causes which relieve the initial tortfeasor from liability. 569 P.2d at 182 n. 9 (citing W. Prosser, Handbook of the Law of Torts § 44, at 281 (4th ed. 1971)). It was neither unforeseeable nor extraordinary that the youth who purchased liquor would share it with his companions and that an automobile accident caused by the companion's intoxication would result. Many similar episodes appear in reported cases. ³ Consequently, no superseding cause exists and the jury need not be instructed on the issue of superseding cause.

III COMPLICITY

The Pines also argues that the complicity of the decedents in contributing to the intoxication of David Anderson bars these actions. The Pines notes that the act of Randy Hanson in giving liquor to David Anderson was forbidden by AS 04.15.060(b) (repealed 1980), ⁴ and argues that permitting a recovery in effect countenances his illegal conduct. In Miller v. City of Portland, 604 P.2d 1261 (Or.1980) the Supreme Court of Oregon accepted a similar argument:

[The statute] prohibits minors, under the circumstances here, from purchasing or acquiring alcoholic liquor and provides a penalty for the violation (a fine). It would be inconsistent with apparent legislative policy to reward the violator with a cause of action based upon the conduct which the legislature has chosen to prohibit and penalize.

Id. at 1265 (footnote omitted). Complicity in similar circumstances has been recognized as a defense by...