Ohio Cas. Ins. Co. v. Todd, No. 72490

CourtSupreme Court of Oklahoma
Citation813 P.2d 508,1991 OK 54
Docket NumberNo. 72490
Decision Date11 June 1991
Parties, 1991 OK 54 OHIO CASUALTY INSURANCE COMPANY, Plaintiff, v. Phil TODD, d/b/a Todd's Tavern and Rick A. Robertson, Defendants.

Page 508

813 P.2d 508
60 USLW 2016, 1991 OK 54
Phil TODD, d/b/a Todd's Tavern and Rick A. Robertson, Defendants.
No. 72490.
Supreme Court of Oklahoma.
June 11, 1991.

Certified Question from the United States District Court for the Western District of Oklahoma.

Question certified from the federal district court regarding the application of Brigance v. Velvet Dove Restaurant, Inc, 725 P.2d 300 (Okla.1986). Patron asserts that tavern owner is liable for injuries sustained by patron in a one-car accident. Patron allegedly was driving while intoxicated after being served alcoholic beverages at the tavern owner's establishment. We hold that Brigance does not extend to provide a cause of action for an adult who voluntarily consumes an excessive amount of alcohol.


Jim T. Priest, Victor Albert, McKinney, Stringer & Webster, Oklahoma City, for plaintiff.

Reggie N. Whitten, Kent R. McGuire, Don R. Martin, Jr., Mills, Whitten, Mills, Mills, & Hinkle, Oklahoma City, for defendant Phil Todd d/b/a/ Todd's Tavern.

Mark Hendricksen, El Reno, Gary B. Homsey, Jerry F. Bryan, Gary B. Homsey & Associates, Oklahoma City, for defendant Rick A. Robertson.


Petition for rehearing filed in this cause is granted and this court's opinion promulgated herein on November 13, 1990 and

Page 509

reported at 61 OBJ 3016 is withdrawn and replaced by the opinion filed this date.


LAVENDER and KAUGER, JJ., concur in part, dissent in part.

ALMA WILSON, J., dissents.

SUMMERS, Justice:

The question certified for our resolution calls upon us to decide whether Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla.1986), should be extended to create a common law cause of action against a tavern owner for an adult who voluntarily becomes intoxicated and is injured as a result of his own inability to drive a vehicle properly. We decline to extend Brigance to this situation, following the reasoning used by a majority of jurisdictions.

Pursuant to 20 O.S.1981, § 1601 et seq., the Uniform Certification of Questions of Law Act, the Honorable Fred Daugherty, District Judge for the United Stated District Court of the Western District of Oklahoma, certified the question to this Court as follows:

Does an intoxicated driver have a cause of action under Oklahoma law against a tavern owner if the intoxicated driver, after being served alcohol by the tavern owner or employee who knew or should have known that the driver was intoxicated, is involved in an automobile accident in which only the intoxicated driver himself is injured?


On November 6, 1986, Rick Robertson was injured in a one-car accident after having been served alcohol in Todd's Tavern. Ohio Casualty Insurance Company instituted this action in federal court, asking for a declaratory judgment as to its duty to defend and indemnify Todd for any lawsuits resulting from this occurrence.

Robertson filed a cross-claim against Todd, alleging that the employees of Todd's Tavern served him alcoholic beverages when he was noticeably intoxicated in violation of 37 O.S.1981, § 537, and that for this reason Todd is liable for his injuries. Todd moved to dismiss the cross-claim under Federal Rule 12(b)(6) because Oklahoma has not recognized such a cause of action. Thus the question has been certified here.


All agree that the pertinent case is Brigance v. Velvet Dove Restaurant Inc., 725 P.2d 300 (Okla.1986). Robertson urges that Brigance should be extended to cover the situation at bar. Todd, however, asserts that Brigance creates a cause of action for innocent third parties, and should not be stretched to include a situation wherein the inebriate sues for his own injuries.

In Brigance we recognized for the first time a common law "dram shop" action; a third party who was injured in an intoxicated driver's auto accident may now state a cause of action against the restaurant that served liquor to the driver. At common law, such an action was not possible. This rule of non-liability was based primarily on concept of proximate cause--that the consumption of the alcohol rather than its sale was the cause of the injury. In changing the common law rule and creating this cause of action, we acknowledged that legal duty and liability are matters of public policy and are therefore subject to the changing attitudes and needs of society. Id. at 303. We pointed out that protection must be afforded to the innocent bystander:

With today's car of steel and speed it becomes a lethal weapon in the hands of a drunken imbiber. The frequency of accidents involving drunk drivers are commonplace. Its affliction of bodily injury to an unsuspecting public is also of common knowledge. Id. at 304. (Emphasis Added)

The creation of this cause of action, therein limited to third parties, served to protect the innocent by allowing liability to be placed not only on the intoxicated drivers but concurrently on those parties who continued

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to serve alcohol to their customers already noticeably intoxicated. Id. at 305.

Left open by Brigance was the question of whether the consumer-inebriate would have a cause of action against the vendor for on-premises consumption. Again, the question remained unanswered in McClelland v. Post No., 1201, VFW, 770 P.2d 569 (Okla.1989), wherein we determined that Brigance applied only to those events occurring after October 3, 1986. We are now called upon to address this question.


The elements of negligence are "(1) the existence of a duty on part of defendant to protect plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom." Brigance, 725 P.2d at 302, quoting Sloan v. Owen, 579 P.2d 812, 814 (Okla.1977). All three of these elements must exist before the plaintiff has a valid cause of action. Robertson, relying on 37 O.S.Supp.1985 § 537(A)(2), urges that a duty exists on the part of a tavern keeper to refrain from serving alcoholic beverages to an adult customer who is noticeably intoxicated. Section 537(A)(2) states in relevant part that no person shall "[s]ell, deliver or knowingly furnish alcoholic beverages to an intoxicated person."


Robertson urges that Todd violated Section 537(A)(2) and that the violation amounted to negligence per se. In Hampton v. Hammons, 743 P.2d 1053, 1056 (Okla.1987), we explained the elements which must be found before the violation of a statute is negligence per se. Relying on Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613, 618 (Okla.1980), we pointed out that (1) the injury must have been caused by the violation, (2) the injury must be of a type intended to be prevented by the ordinance, and (3) the injured party must be one of the class intended to be protected by the statute.

Because we find the third element to be missing, we do not address the first two. In Brigance, we stated that the purpose behind Section 537(A)(2) was to protect innocent third parties who were injured by intoxicated persons. In Cuevas v. Royal D'Iberville Hotel, 498 So.2d 346, 348 (Miss.1986), the Mississippi Supreme Court construed a statute similar to Section 537(A)(2), and found that the intoxicated person was excluded from the class of persons meant to be protected by the statute. In making this determination, the court pointed out the class to be protected was the general public, and that this class, while broad in range, could not be said to include "an adult individual ... who voluntarily consumes intoxicants and then, by reason of his inebriated condition, injures himself." Id. We agree.

We find nothing in Section 537(A)(2), or in any of the statutes regulating the sale of alcohol, which indicate that the legislature intended to protect the intoxicated adult who, by his own actions, causes injury to himself. 1 Instead, it appears that the legislature intended to protect the "unsuspecting public"--in effect all of the populace except the willing imbiber. Brigance, at 304. See also Bertelmann v. Taas Assoc., 69 Haw. 95, 735 P.2d 930, 934 (1987). Thus, a violation of Section 537(A)(2) does not amount to negligence per se under the facts of this case.


Next is the question of whether a tavern owner has a common law duty to an intoxicated adult customer who injures himself. Because we find that the duty of the tavern owner does not extend to an adult customer who voluntarily consumes

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intoxicants and is injured, we need not address the question of proximate cause. 2

Traditionally, no duty to the inebriated customer could be enforced for want of a recognized causal link. Great Central Ins. Co. v. Tobias, 37 Ohio St.3d 127, 524 N.E.2d 168, 171 (1988). In Brigance, however, we recognized that the concept of duty is one of public policy and is "subject to the changing attitudes and needs of society." Id. at 303. Because accidents involving drunk drivers have become commonplace, we held:

"[W]e find the commercial vendor for on the premises consumption is under a duty, imposed both by statute and common law principles, to exercise reasonable care in selling or furnishing liquor to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle and who may subsequently injure a third party."

We must now decide whether public concerns and changing attitudes require this duty to be extended to the inebriated customer.

Several states have considered the question. See Annot., 98 A.L.R.3d 1230 (1980). A majority of them have refused to create a cause of action for an adult who voluntarily drinks to the point of intoxication and is thereby injured. 3 These jurisdictions have generally concluded that as a matter of public policy drunken persons...

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