Nehring v. LaCounte

• Decision Date: 21 January 1986
• Docket Number: No. 85-84,85-84
• Citation: 219 Mont. 462,43 St.Rep. 93,712 P.2d 1329
• Parties: Beatrice T. NEHRING, widow and surviving heir of Harold W. Nehring, deceased; Donald D. Nehring, Personal Representative of the estate of Harold Nehring, deceased, and Tri-State Insurance Company of Minnesota, a Corp., Plaintiffs and Appellants, v. Earl L. LaCOUNTE and Janice C. LaCounte, d/b/a Lenny's Bar, Defendants, Third-Party Plaintiffs and Respondents, and Michael J. BOTTENSEK, Defendant, v. INSURANCE COMPANY OF NORTH AMERICA, a Corp.; Seitz Insurance Agency, and Rodney Lemieux, individually and as agent for Seitz Insurance Agency and Insurance Company of North America, Third-Party Defendants.
• Court: Montana Supreme Court

Page 1329

712 P.2d 1329

219 Mont. 462

Beatrice T. NEHRING, widow and surviving heir of Harold W.

Nehring, deceased; Donald D. Nehring, Personal Representative of the estate of Harold Nehring, deceased, and Tri-State Insurance Company of Minnesota, a Corp., Plaintiffs and Appellants, v. Earl L. LaCOUNTE and Janice C. LaCounte, d/b/a Lenny's Bar, Defendants, Third-Party Plaintiffs and Respondents, and Michael J. BOTTENSEK, Defendant, v. INSURANCE COMPANY OF NORTH AMERICA, a Corp.; Seitz

Insurance Agency, and Rodney Lemieux, individually and as

agent for Seitz Insurance Agency and Insurance Company of

North America, Third-Party Defendants.

No. 85-84.

Supreme Court of Montana.

Submitted Sept. 23, 1985.

Decided Jan. 21, 1986.

Jacque Best, Habedank, Cumming, Best & Maltese, Sidney, Gene R. Jarussi, argued, Keefer, Roybal, Hanson, Stacey & Jarussi, Billings, for plaintiffs and appellants.

Donald L. Harris, argued, Crowley Law Firm, Billings, Francis J. McCarvel, Glasgow, Richard F. Cebull, Anderson, Brown Law Firm, Billings, Thomas Monaghan, Lucas & Monaghan, Miles City, for defendants, third-party plaintiffs and respondents.

Rodney T. Hartman, Herndon, Harper & Munro, Billings, for amicus curiae Robert Brust d/b/a Drifter's Tavern.

HASWELL, Retired Chief Justice. ^*

In a wrongful death and survival action against the operators of a Montana tavern who allegedly wrongfully served alcoholic beverages to a driver who later killed decedent in an automobile accident, the Roosevelt County District Court granted summary judgment to the tavern operators. We vacate and remand.

The accident occurred during the early morning hours of September 20, 1980 in North Dakota, about three miles west of Williston. Michael Bottensek drove the wrong way on a four-lane divided highway and struck head-on an oncoming west-bound vehicle driven by decedent Harold Nehring. Nehring and two passengers in the Bottensek vehicle, Patty Thoring and Jolene McGillis, were killed. Michael Bottensek and his brother, the other passenger in his vehicle, survived.

The events leading to this accident began on September 19, 1980. Bottensek, his brother, Patty and Jolene decided to celebrate Jolene's nineteenth birthday by going to Lenny's Bar in Bainville, Montana, about 35 miles from their homes in Williston, North Dakota. LaCountes are the owners and operators of this tavern. Bottensek had consumed four beers and smoked a joint of marijuana between 2:00 p.m. and 9:00 p.m., the time they left Williston. On their way to Lenny's Bar, Bottensek drank two more beers. He drank four of these six beers within the three hours prior to arriving at the tavern at about 10:00 p.m.

At Lenny's Bar, Bottensek drank about eight more beers during the next two or three hours. He stated in his deposition that he was drunk when he ordered his last beer. He recalled that his speech was slurred, that he spoke with a "thick" tongue, and that he staggered when he left the bar. He also stated that he had no difficulty ordering or paying for drinks, he did not vomit or spit-up, and that he did not fall down, knock chairs over or bump into other people. According to the LaCountes and one of their employees, Bottensek did not appear drunk, could pay for drinks, did not slur or stagger and did not cause problems with other patrons. However, LaCountes also stated that Bottensek threatened to shoot Earl LaCounte and was ejected from the bar between 10:00 and 11:00 p.m.

Bottensek denied this act and stated that he left the tavern at about 1:00 a.m. because he was drunk, that his brother left about the same time, that they waited in the car until Patty and Jolene left at closing time an hour later, and that all four were drunk. Just before leaving, Patty and Jolene bought a fifth of lime vodka and a case of Budweiser beer.

When they left the parking lot, Bottensek drove east toward Williston. He had blank spots in his memory, but remembered having trouble driving. Apparently he stopped on the highway at one point because he recalled Patty getting into the driver's seat and telling him if he hurt Jolene's baby he would be in trouble. Jolene was pregnant at this time. He also recalled Patty saying she drove as badly as he did. After stopping in a rest area, Bottensek again got behind the wheel. The accident occurred about an hour after they left the tavern when, in a thick fog, Bottensek's vehicle crossed over into a west-bound lane and collided head-on with the Nehring vehicle. At the time of the accident, Bottensek's blood alcohol level was .20.

On February 19, 1982, the plaintiffs filed an action seeking damages (1) for the wrongful death of Harold Nehring and (2) for Nehring's damages which accrued prior to his death and survived in favor of his estate. Plaintiffs are his surviving widow and heir, the personal representative of his estate and his automobile insurer. Defendants are Michael Bottensek and the owners and operators of Lenny's Bar, the LaCountes.

The amended complaint contains three claims for relief:

(1) The tavern operators or their agents sold alcoholic beverages to Michael Bottensek when he was actually, apparently or obviously intoxicated in violation of Sec. 16-3-301, MCA;

(2) the tavern operators or their agents violated North Dakota's dram shop act which applies to this action;

(3) the tavern operators or their agents negligently sold alcoholic beverages to Michael Bottensek causing him to become intoxicated to such an extent that he was unable to operate or control his motor vehicle.

Each of the three claims alleges proximate cause and resulting damages.

On October 2, 1984, the District Court granted the tavern operators' motion for summary judgment on all three claims. The court held that under Montana law, the tavern operator was liable only if he served the customer while he was in a helpless condition, of which there were no supporting facts, citing Runge v. Watts (1979), 180 Mont. 91, 589 P.2d 145. The court held the North Dakota dram shop act inapplicable, citing a recent decision of North Dakota's Supreme Court that this act had no extraterritorial effect, Thoring v. Bottensek (N.D.1984), 350 N.W.2d 586. Finally, the court found no common law liability of a tavern operator and refused to "legislate" on the matter.

Final judgment was entered in favor of the LaCountes and against plaintiffs pursuant to a Rule 54(b), M.R.Civ.P. certification. Plaintiffs appeal from the final judgment.

We rephrase the issues:

(1) Can a person injured off-premises by a patron of a licensee recover from the licensee who served the patron alcoholic beverages?

(2) Does a genuine issue of material fact preclude summary judgment?

Traditionally, at common law, no right of action existed against a seller of alcoholic beverages in favor of those injured by the intoxication of the purchaser. The reason usually given for this rule is that the consumption, rather than the furnishing, of the alcoholic beverages proximately caused the injury. This Court acknowledged and followed this rule in Nevin v. Carlasco (1961), 139 Mont. 512, 365 P.2d 637, which concerned a tavern operator's liability to protect patrons from other patrons. We stated there that:

... The rule followed by most courts is that when damage arises from voluntary intoxication, the seller of the intoxicant is not liable in tort for the reason that his act is not the efficient cause of the damage. The proximate cause is the act of him who imbibes the liquor.

[Plaintiff] was obliged to prove a set of circumstances which created a duty to the injured patron and facts that would prove a breach of that duty. (Citation omitted.)

139 Mont. at 515, 365 P.2d at 639.

In later cases, this Court acknowledged that Montana statutorily prohibits the sale of alcoholic beverages to minors and intoxicated persons. We declined to use the statutes as a basis for liability under the circumstances presented in those cases. In Folda v. City of Bozeman (1978), 177 Mont. 537, 582 P.2d 767, we held that the victim's voluntary intoxication prevented her from recovering because it was the proximate cause of her death and she had disregarded her duty to use due care. Swartzenberger v. Billings Labor Temple Assn. (1978), 179 Mont. 145, 586 P.2d 712, discusses both the lack of a Montana dram shop act and the cases mentioned above. We denied recovery to the plaintiff because of his contributory negligence in violating statutory law and drinking. We distinguished Deeds v. United States (D.Mont.1969), 306 F.Supp. 348, as presenting a claim of an injured third party rather than a claim by the imbiber. The most recent Montana case, Runge v. Watts (1979), 180 Mont. 91, 589 P.2d 145, concerned the liability of a social host furnishing liquor to a minor who then caused an accident injuring a third party. We held that the proximate cause of plaintiff's injuries was the driver's drinking, rather than defendant's serving of alcohol. Of these cases, only Deeds, supra, addresses a tavern operator's liability for off-premises injuries to a third party injured by a patron of the tavern.

Section 16-3-301(2), MCA, originally enacted as part of the Montana Beer Act in 1933, provides:

It shall be unlawful for any licensee, his or her employee or employees, or any other persons to sell, deliver, or give away or cause or permit to be sold, delivered, or given away any alcoholic beverage to:

(a) any person under 19 years of age;

(b) any intoxicated person or any person actually, apparently, or obviously intoxicated.

Section 16-6-304, MCA, originally enacted as part of the State Liquor Control Act of Montana in 1933, provides:

(1) No store manager, retail licensee, or any employee of a store manager or retail licensee may sell any alcoholic beverage or permit any alcoholic beverage to be sold to any person apparently under the influence of an alcoholic beverage.

(2) No person may give an alcoholic beverage to a person apparently under the influence...