Ono v. Applegate

• Citation: 612 P.2d 533,62 Haw. 131
• Decision Date: 06 June 1980
• Docket Number: No. 5975,5975
• Parties: Masaichi ONO, Plaintiff-Appellee, v. H. Jon APPLEGATE, doing business as Sand Trap, and Charles R. Wetter, Esq., as Administrator of the Estate of Samantha Judith Scritchfield, Deceased, Defendants-Appellants.
• Court: Supreme Court of Hawai'i

Page 533

612 P.2d 533

62 Haw. 131

Masaichi ONO, Plaintiff-Appellee, v. H. Jon APPLEGATE, doing business as Sand Trap, and Charles R. Wetter, Esq., as Administrator of the Estate of Samantha Judith Scritchfield, Deceased Defendants-Appellants.

No. 5975.

Supreme Court of Hawai'i.

June 6, 1980.

Syllabus by the Court

1. A person who is injured by an inebriated automobile driver may recover, in the absence of dram shop legislation, from the tavern that provided alcohol to the driver in violation of the liquor control law. HRS § 281-78(a)(2)(B) (1976).

2. Statute prohibiting sale or service of alcohol to a person under the influence of intoxicating liquor imposes a duty of care upon a tavern. HRS § 281-78(a)(2)(B) (1976).

3. Tavern must have notice or knowledge that person is under the influence of intoxicating liquor before a violation of the liquor control law will occur. HRS § 281-78(a)(2)(B) (1976).

4. Violation of the liquor control law was properly submitted to the jury as evidence of negligence. HRS § 281-78(a)(2)(B) (1976).

5. Evidence showing the customer's prior drinking is relevant to whether the tavern knew or had reason to know that the customer was under the influence of intoxicating liquor at the time he was served by the tavern.

6. A tavern's sale or service of alcohol to an intoxicated automobile driver may be the proximate cause of injuries inflicted upon a third party by the inebriated driver.

7. The consequences of serving liquor to an intoxicated motorist, such as further inebriation and injurious conduct, are foreseeable intervening acts which will not relieve the tavern of liability for injuries sustained by a third person.

Peter C.-P. Char, Honolulu (Cades, Schutte, Fleming & Wright, Honolulu, of counsel), for defendant-appellant.

Gerald Y. Sekiya, Honolulu (Cronin, Fried, Sekiya, Haley & Kekina, Honolulu, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and MARUMOTO, Retired Justice, in place of KIDWELL, J., absent.

OGATA, Justice.

H. John Applegate, doing business as the Sand Trap, a defendant in the actions below, has appealed the decision of the Second Circuit Court in favor of appellee Masaichi Ono, one of the plaintiffs below.

On May 19, 1973, Samantha Scritchfield was the driver of a car which collided head-on with a car containing Thomas Tagawa, James Tagawa, and Masaichi Ono in Lahaina, Maui. James Tagawa and Masaichi Ono sustained serious bodily injuries due to the accident. Thomas Tagawa, Samantha Scritchfield, and Jose Montez, a passenger in the Scritchfield vehicle, were killed in the collision. Prior to the collision, Ms. Scritchfield had been drinking alcoholic beverages at her apartment and later at a bar called the Sand Trap in Kaanapali. The accident occurred late in the evening after Ms. Scritchfield left the Sand Trap.

As a result of the accident, two actions were brought in the Second Circuit Court, Maui, Hawaii. In Civil No. 2293, James Tagawa and Dorothy Tagawa, wife of Thomas Tagawa, sued the Estate of Samantha Scritchfield and H. Jon Applegate, doing business as the Sand Trap. In Civil No. 2311, Masaichi Ono also sued Ms. Scritchfield and the Sand Trap. In March, 1974, all the parties agreed to consolidate the actions for a jury trial.

The plaintiffs below alleged that Ms. Scritchfield, while in an intoxicated state, negligently operated her automobile so as to cause the collision between the two vehicles. The plaintiffs also sued the Sand Trap for negligently supplying alcohol to Ms. Scritchfield, who was already under the influence of liquor at the time she entered the bar, and for negligently allowing her to leave the Sand Trap in an intoxicated condition. Such a sale of alcohol is prohibited by HRS § 281-78(a)(2)(B) (1976), which states that no licensee under that chapter shall sell or furnish liquor to any person who is at that time under the influence of liquor.

Prior to trial, defendant-appellant Sand Trap moved to dismiss the actions against it pursuant to Rule 12(b)(6), Hawaii Rules of Civil Procedure. The Sand Trap argued that where an intoxicated person injures another in an automobile accident, this jurisdiction, in the absence of a Dram Shop Act, does not permit the injured third person to recover from the liquor dispenser who negligently provided alcohol to the intoxicated driver. The sole question presented by the Motion to Dismiss was, therefore, whether a common law dram shop action existed in Hawaii. The court below denied the Motion to Dismiss, thereby allowing the common law action, and the case proceeded to trial. During the trial, defendant-appellant Sand Trap also objected to the admission of certain evidence and to one of the trial court's instructions to the jury.

On April 30, 1975, the jury returned a special verdict in favor of the plaintiffs. The jury stated that defendant Scritchfield was 75% at fault and that defendant Sand Trap was 25% at fault. Defendant-appellant Sand Trap then made motions for Directed Verdict, Judgment Notwithstanding the Verdict, New Trial, and Remittitur, all of which were denied by the court below. The instant appeal by the Sand Trap Followed. FN1 For the reasons hereinafter set forth, we affirm the decision of the court below.

The dispositive issue in this appeal is whether a person who is injured by an inebriated automobile driver may recover, in the absence of dram shop legislation, ² from the tavern that provided alcohol to the driver in violation of this jurisdiction's liquor control law. ³

Under the old common law rule, an injured third party could not recover against a supplier of liquor for injuries suffered as a result of the tavern patron's intoxication. Courts advanced two rationales to support this rule. First, the proximate cause of both the patron's intoxication and the subsequent injury to the third party was held to be the consumption of the liquor, not its sale or service. Second, even if the sale or service of liquor were found to have caused the patron's intoxication, the later injury to another person was thought to be an unforeseeable result of the furnishing of the liquor. Liability therefore could not attach to the tavern for serving alcoholic beverages to an intoxicated person.

In recent years, numerous courts have refused to follow the old rule of non-liability and have allowed the injured person to recover from the liquor supplier. Vesely v. Sager, 5 Cal.3d 153, 486 P.2d 151, 95 Cal.Rptr. 623 (1971), is a leading case in this area. In Vesely, an injured motorist brought an action against a tavern owner for injuries sustained when his automobile was struck by a car driven by an intoxicated tavern customer. The tavern had served alcohol to the intoxicated patron in violation of California's liquor control law. At the time of the suit, California, as in this jurisdiction, did not have any type of dram shop legislation. ⁴ After reviewing the old common law rule and a number of prior cases, the Supreme Court of California permitted the establishment of a common law dram shop action based on a negligence analysis. Vesely, supra at 160-65, 486 P.2d at 155-60, 95 Cal.Rptr. at 627-31.

The Vesely court held that the sale or service of alcoholic beverages could indeed be the proximate cause of injuries to a third person by the intoxicated consumer of the beverages. The court stated:

Insofar as proximate cause is concerned, we find no basis for a distinction founded solely on the fact that the consumption of an alcoholic beverage is a voluntary act of the consumer and is a link in the chain of causation from the furnishing of the beverage to the injury resulting from intoxication. . . . (I)t is clear that the furnishing of an alcohol beverage to an intoxicated person may be a proximate cause of injuries inflicted by that individual upon a third person.

Vesely, supra at 164, 486 P.2d at 159, 95 Cal.Rptr. at 631.

The court also held that the injury to a third person due to the patron's inebriation was a foreseeable result of the tavern's furnishing of liquor to an intoxicated person in violation of California's liquor control statute. The court stated that the consumption of liquor, the resulting intoxication, and the injury-producing conduct were foreseeable intervening causes which would not relieve the tavern of liability. Id.

Other jurisdictions that, in the absence or inapplicability of dram shop legislation, have employed a similar analysis have also allowed recovery against the tavern for injuries received by a third person as a result of a customer's intoxication. See Troglia v. United States, 602 F.2d 1334 (9th Cir. 1979); Marusa v. District of Columbia, 484 F.2d 828 (D.C.Cir.1973); Waynick v. Chicago's Last Dept. Store, 269 F.2d 322 (7th Cir. 1959); Vance v. United States, 355 F.Supp. 756 (D.Alaska 1973); Deeds v. United States, 306 F.Supp. 348 (D.Mont.1959); Taylor v. Ruiz, 394 A.2d 765 (Del.Super.1978); Lewis v. State, 256 N.W.2d 181 (Iowa 1977); Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977); Pence v. Ketchum, 326 So.2d 831 (La.1976); Thaut v. Finley, 50 Mich.App. 611, 213 N.W.2d 820 (1974); Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973); Taggart v. Bitzenhofer, 35 Ohio App.2d 23, 299 N.E.2d 901 (1972); Pike v. George, 434 S.W.2d 626 (Ky.1968); Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18 (1968); Prevatt v. McClennan, 201 So.2d 780 (Fla.App.1967); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965); Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290 (1965); Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 198 A.2d 550 (1964); Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755 (1964); Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); see generally W. Prosser, Handbook of the Law of Torts § 104, at 678-79 (4th ed. 1971).

The reasoning in...