Nazareno v. Urie, 4807

• Decision Date: 31 December 1981
• Docket Number: No. 4807,4807
• Citation: 638 P.2d 671
• Parties: Felicidad NAZARENO, Appellant, v. Sid URIE, Martin Urie, a partnership, d/b/a Solly's Office, Appellees.
• Court: Alaska Supreme Court

Page 671

638 P.2d 671

Felicidad NAZARENO, Appellant, v. Sid URIE, Martin Urie, a partnership, d/b/a Solly's Office, Appellees.

No. 4807.

Supreme Court of Alaska.

Dec. 31, 1981.

Gerald W. Markham, Kurt M. LeDoux, Kodiak, for appellant.

Melvin M. Stephens, II, Hartig, Rhodes, Norman & Mahoney, Kodiak, for appellees.

Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and HODGES, Superior Court Judge. ^*

OPINION

BURKE, Justice.

Plaintiff Felicidad Nazareno appeals from an adverse jury verdict, contending that the trial court erred in failing to instruct the jury on negligence per se principles. We reverse.

Nazareno sued the owners of a Kodiak bar, Sid and Martin Urie, for damages resulting from her collision with a bar patron on the bar's dance floor. Three witnesses testified to the circumstances surrounding her injury. Nazareno and a friend, Ruby Waltrip, both stated they had noticed a tall, heavyset man, later identified as Dennis Welch, who was talking very loudly, and who had "a really red face" with bloodshot eyes. They testified that Welch appeared to be very drunk. Waltrip said that Welch was drinking at a table, and that she saw at least two drinks in front of him. Nazareno noted that Welch's friend was buying him drinks.

Later, Nazareno was on the dance floor when Welch lost his balance and fell against her, pinning Nazareno's right shoulder to the wall and fracturing her clavicle. Nazareno's friends took her to the hospital with Welch and several of his friends accompanying them. Though Welch's friends offered to take Nazareno back to the hospital the next day, they failed to do so, and Welch was not seen again.

Defendant Sid Urie testified that he was tending bar that night. Urie denied having seen Welch before the incident, but said he could faintly hear the impact of the collision.

Nazareno argued that defendants were liable on either of two theories. First, she contended that the Uries had a duty to control the conduct of bar patrons. Second, she argued that Welch should not have been served alcoholic drinks when he was already intoxicated. Only the latter theory is at issue on appeal, as Nazareno argues she was entitled to a jury instruction, rejected by the trial court, setting out former AS 04.15.020(a) ¹ and telling the jury that any violation of the statute was negligence per se. The court also declined to give an instruction stating that a violation was evidence of negligence.

The court, instead, instructed the jury that Nazareno's claim was that the defendants failed to properly protect their customers by serving Welch when he was intoxicated, and that Nazareno bore the burden of proving that such conduct was negligent under a reasonable person standard. ²

I

At common law, a purveyor of alcoholic beverages could not be liable for injuries or damage caused by an intoxicated customer. Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125, 127 (1945); State ex rel. Joyce v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951). "The rationale for the common law rule was that the consumption and not the sale of the liquor was the proximate cause of injuries sustained as a result of intoxication." Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 627, 486 P.2d 151, 155 (1971) (citations omitted). Recently, however, various courts have expressly abrogated the rule of nonliability, reasoning that personal injury is an eminently foreseeable consequence of serving an intoxicated customer more liquor. See, e.g., Ono v. Applegate, 612 P.2d 533, 538 (Haw.1980); Bernhard v. Harrah's Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 222, 546 P.2d 719, 726 (1976), quoting Vesely v. Sager, 5 Cal.3d 153, 164, 95 Cal.Rptr. 623, 627, 486 P.2d 151, 155 (1971); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 8 (1959). Recognizing that a tortfeasor is not relieved from liability by the foreseeable acts of others, these jurisdictions hold that furnishing liquor may be the proximate cause of injuries inflicted on a third person by an intoxicated customer. "(S)uch furnishing is a proximate cause ... because the consumption, resulting intoxication, and injury producing conduct are foreseeable intervening causes ...." Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 631, 486 P.2d 151, 159 (1971). We are persuaded by the reasoning set forth in these cases and accordingly hold that the vendor of alcoholic beverages may be civilly liable when the sale of the liquor was a substantial factor in causing the injury. ³

Having determined that the sale of the liquor may be the proximate cause of injuries sustained by a third person, it 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). ⁴ 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. "The first prime requisite to de-intoxicate one who has, because of alcohol, lost control over his reflexes, judgment and sense of responsibility to others, is to stop pouring alcohol into him. This is a duty which everyone owes to society and to law entirely apart from any statute." Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 198 A.2d 550, 553 (1964). We therefore hold that there is a general common law duty, independent of statute, requiring vendors to conduct themselves with reasonable care and prudence when dispensing alcohol. ⁵ Breach of this duty would usually involve the jury's consideration of the reasonableness of the liquor vendor's conduct. The jury's determination of that issue is unnecessary, however, where the legislature has enacted a statute setting forth the standard of conduct expected of a reasonable person. Bachner v. Rich, 554 P.2d 430, 440-42 (Alaska 1976); Ferrell v. Baxter, 484 P.2d 250, 264 (Alaska 1971). Breach of such a statutory standard constitutes negligence per se. Id. Plaintiff argues that AS 04.15.020(a) creates just such a standard and that she was entitled to a jury instruction that any violation of the statute was negligence per se.

A duty of care and the attendant standard of conduct may be found in a statute silent on the issue of civil liability. Restatement (Second) of Torts, § 286, Comment d (1965). ⁶ This court explicitly adopted § 286 as the law of this state in Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971). Section 286 states that:

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.

There seems little doubt that AS 04.15.020(a) satisfies these four requirements. Plaintiff is a member of the public (the protected class), whose interest (physical well being), is sought to be protected against a particular hazard (the irresponsible acts of intoxicated persons). We agree with the court in Vance v. United States, 355 F.Supp. 756, 759 (D.Alaska 1973) that AS 04.15.020(a) "unquestionably is designed at least in part to protect against personal injuries caused by intoxication." We therefore hold that AS 04.15.020(a) establishes a minimum standard of conduct and that failure to adhere to this standard constitutes negligence per se.

We find no merit in defendant's contention that the standard of care expressed in AS 04.15.020(a) is too general, obscure or abstract to warrant a negligence per se instruction. While there are statutes phrased too generally or vaguely to justify negligence per se treatment, ⁷ AS 04.15.020(a) is not one of them. In Bachner v. Rich, 554 P.2d 430 (Alaska 1976), we quoted the Ohio Supreme Court's opinion in Eisenhuth v. Moneyhen, 161 Ohio St. 367, 119 N.E.2d 440 (Ohio 1954), at length. We find that same language apposite here.

The determination whether any legislative enactment prescribes a specific course of conduct, the violation of which is negligence per se, or only a rule of conduct, compliance with which is to be tested by the conduct of a reasonably prudent person, often presents a problem of great difficulty. Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application, and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.

554 P.2d at 441-42, quoting 119 N.E.2d at 443-44.

The command of AS 04.15.020(a) is clear and unequivocal; no vendor shall sell liquor to an intoxicated person. In accordance with the opinions of sister states interpreting similar statutes, ⁸ we hold that failure to comply with the strictures of AS 04.15.020(a) amounts to negligence per se. ⁹

Given this conclusion, it is evident that the trial court erred in refusing to give the requested negligence per se instruction. Moreover, such an instruction would have required the defendant to "prove affirmatively that his violation (of the statute) was excused." Ferrell v. Baxter, 484 P.2d 250, 266 (Alaska 1971); Restatement (Second) of Torts §§ 288A, 288B (1965). Thus,...