Pence v. Ketchum

• Citation: 314 So.2d 550
• Decision Date: 19 May 1975
• Docket Number: No. 10263,10263
• Parties: Ladene K. PENCE v. Dewey Kelley KETCHUM et al.
• Court: Court of Appeal of Louisiana — District of US

Page 550

314 So.2d 550

Ladene K. PENCE v. Dewey Kelley KETCHUM et al.

No. 10263.

Court of Appeal of Louisiana, First Circuit.

May 19, 1975.

Rehearing Denied June 30, 1975.

Writ Granted Sept. 25, 1975.

Paul H. Due, Baton Rouge, for appellant.

Joseph W. Cole, Jr., Port Allen, for defendants-appellees Victor J . Silvio and Anthony J. Silvio.

Robert J. Vandaworker, Baton Rouge, for defendants-appellees Dewey Ketchum and Alabama Farm Bureau Mut. Cas. Ins. Co., Inc.

Before SARTAIN, ELLIS and BARNETTE, JJ.

ELLIS, Judge.

Plaintiff Ladene K. Pence is seeking damages for personal injuries suffered when she was struck by an automobile operated by Dewey Kelley Ketchum, while she was attempting to cross U.S. Highway 190 in East Baton Rouge Parish. In her petition, she alleges that her injuries were caused by the negligence of Mr. Ketchum in various respects, and, alternatively, by the joint and concurrent negligence of Mr. Ketchum and of Anthony J. Silvio and Victor J. Silvio. The petition states that the Messrs. Silvio:

'. . . at the time of the accident were the owners and operators of a bar located on Highway 190 in West Baton Rouge Parish, known as the Candlelight Inn, in that said defendants and their agents, employees and representatives forced plaintiff to leave the Candlelight Inn premises when they knew or reasonably should have known that she was in no condition, due to her state of intoxication, to be placed on the busy Highway 190, in disregard of their duties owed to a patron and customer such as plaintiff after the personnel running the Candlelight Inn had served plaintiff an excessive amount of alcoholic beverages, which consumption by plaintiff of an excessive amount of alcoholic drinks was encouraged and coaxed by employees of Candlelight Inn, all resulting in plaintiff being in a helpless state when she was forced to leave the Candlelight Inn and permitted by one or both of the defendant owners or their employees to attempt to cross the highway when she was unable, due to her impaired condition, to do so.'

Exceptions of no cause of action were filed by the defendants Silvio. After a hearing, both exceptions were maintained, and plaintiff's suit was dismissed as to those defendants. From the judgments of dismissal, plaintiff has appealed .

It is an established principle that voluntary intoxication cannot relieve one of responsibility for his own negligence. A voluntarily intoxicated person is bound to exercise the same degree of care for his own safety as is a sober person. If he places himself in a position of peril as a result of his intoxication, and is injured, he is generally held to be guilty of negligence which is a bar to his recovery. Lee v. Peerless Insurance Co., 175 So.2d 381 (La.App. 2 Cir. 1965); Manuel v. United States Fire Insurance Co., 140 So.2d 702 (La.App. 3 Cir. 1962).

The duty of care on the part of a voluntarily intoxicated person has been relaxed only in some cases in which the intoxicated person was in the care or custody of another who owed him a duty of protection. Barlow v. City of New Orleans, 257 La. 91, 241 So.2d 501 (1970); Shelts v. Jackson, 254 So.2d 668 (La.App. 4 Cir. 1971).

It is plaintiff's principal argument herein that defendants owed her a duty of protection as a consequence of R.S. 26:88(2), which provides:

'No person holding a retail dealer's permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:

'(2) Sell or serve alcoholic beverages to any intoxicated person.'

It is contended that this statute was enacted for the protection of intoxicated persons, and that violation of its terms renders the seller civilly liable to the intoxicated person who is subsequently injured as a result of his intoxication.

The question has already been considered and decided adversely to plaintiff's position in Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966). In that case which is factually identical to this one, the court held that there was no legislative intent in R.S. 26:88(2) to create a right to recover civil damages in those who were not otherwise entitled to recover.

Plaintiff recognizes that the Lee case is dispositive of the issues herein, but urges that it is not binding on us under the doctrine of Jurisprudence constante. He urges that a more modern...