Pence v. Ketchum

Citation326 So.2d 831
Decision Date19 January 1976
Docket NumberNo. 56668,56668
PartiesLadene K. PENCE v. Dewey Kelly KETCHUM et al.
CourtSupreme Court of Louisiana

John W. deGravelles, Due & Dodson, Baton Rouge, for plaintiff-applicant.

Robert J. Vandaworker, Baton Rouge, Joseph W. Cole, Jr., Port Allen, for defendants-respondents.

SANDERS, Chief Justice.

Plaintiff, a patron of a bar, brought this action against the owners of the bar and another to recover damages for injuries sustained when she was struck by an automobile after being ejected from the bar in an intoxicated condition. The district court dismissed the suit on an exception of no cause of action filed by the owners of the bar. The Court of Appeal affirmed the district court, 314 So.2d 550 (1975), relying upon our holding in Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966). We granted writs, La., 319 So.2d 440 (1975), to reconsider the legal issues raised.

The ultimate question before us is whether the petition states a cause of action for damages against the defendants. We hold that it does.

In Louisiana liberal rules of pleading prevail. Each pleading should be so construed as to do substantial justice to the parties. LSA-C.C.P. Art. 865. When the Court can reasonably do so, it will maintain a petition so as to afford the litigant an opportunity to present his evidence. Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971); Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776 (1961); and authorities cited therein.

In ruling upon the peremptory exception of no cause of action, all well-pleaded facts in the petition must be taken as true, and, if the allegations set forth in cause of action in any respect, the exception must be overruled. Eschete v. City of New Orleans, supra; Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961).

In Elliott v. Dupuy, supra, this Court held:

'It is well settled that an exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers; that for the purpose of determining the issues raised by this exception, the well pleaded facts in the petition and any annexed documents must be accepted as true, and that a suit will not be dismissed on exception of no cause of action if allegations of fact set forth a cause of action as to any part of the demand.'

In the present case, plaintiff seeks damages for personal injuries she suffered when she was struck by an automobile operated by defendant Ketchum as she was attempting to cross U.S. Highway 190 in West Baton Rouge Parish. She alleges that her injuries were caused by the negligence of Ketchum and, alternatively, by the joint and concurrent negligence of Ketchum, Anthony J. Silvio and Victor J. Silvio. The petition alleges that the Silvio defendants:

'. . . 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, and 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.'

The Court of Appeal affirmed the dismissal as to the Silvio defendants, stating:

'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's action is based upon Articles 2315 and 2316 of the Louisiana Civil Code, which provide:

'Art. 2315. Every act whatever of man that cause damage to another obliges him by whose fault it happened to repair it. . . .'

'Art. 2316. Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.'

In order to sustain a cause of action under these articles, the petition must adequately allege fault, causation, and damage. Eschete v. City of New Orleans, supra. Fault is a broad concept and, of course, includes negligence. LSA-C.C. Art. 2316. Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is a departure from the conduct expectable of a reasonably prudent man under like circumstances. Brown v. Liberty Mutual Insurance Company, 234 La. 860, 101 So.2d 696 (1958). For analysis, negligence is often divided into Duty and Breach of duty. Prosser, Law of Torts, § 30, p. 143 (4th ed. 1971).

We find that plaintiff's petition adequately alleges that defendants breached at least two duties they owed to plaintiff: the statutory duty of a retailer of alcoholic beverages not to serve alcoholic beverages to an intoxicated person and the duty of a business invitor to avoid affirmative acts increasing the peril of his intoxicated patron.

LSA-R.S. 26:88(2), applicable only to retailers of alcoholic beverages, prohibits a retailer from serving or selling such beverages to a intoxicated person. The statute was designed, at least in part, to protect intoxicated persons from their own helplessness and incompetence. It embodies a legislative judgment that an intoxicated person is a menace to himself. Moreover, in our opinion, the statute creates no higher standard of conduct than that generally required of a reasonable man under like circumstances. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960); 41 Tul.L.Rev. 182, 185 (1965).

Under the allegations of the petition, plaintiff falls within the protected class, and the risk encountered was of the type the duty was designed to prevent. Hence, a court can look to the statute as a standard for determining negligence, or fault, under Articles 2315 and 2316 of the Louisiana Civil Code. See Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Brown v. S. A. Bourg & Sons, Inc., 239 La. 473, 118 So.2d 891 (1960); Lee v. Carwile, La.App., 168 So.2d 469 (1964); Moses v. Mosley, La.App., 146 So.2d 263 (1962); Soronen v. Olde Milford Inn, 84 N.J.Super. 372, 202 A.2d 208 (1964); Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958); Stone, Tort Doctrine in Louisiana: The Concept of Fault, 27 Tul.L.Rev. 1, 3--4 (1952); James, Statutory Standards and Negligence in Accident Cases, 11 La.L.Rev. 95 (1950).

A violation of the statute, causing harm to an intoxicated patron, gives rise to a viable cause of action. See, e.g., Elder v. Fisher, Ind., 217 N.E.2d 847 (1966); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965); Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965); Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 198 A.2d 550 (1964); Soronen v. Olde Milford Inn, supra; 41 Tul.L.Rev. 182, 184 (1965).

In Soronen v. Olde Milford Inn, supra, the New Jersey Court held:

'The duty to the visibly intoxicated persons is both common law and statutory. Intoxication is a state of impairment of one's mental and physical faculties due to overindulgence in alcoholic drink. A person in that condition is unable to exercise normal powers of judgment and prudence. He is a potential menace, not only to himself but to others. Common sense requires that a tavern keeper refuse to serve alcoholic drink to such a person. This common law principle is carried into our Alcoholic Beverage Control Act which, through implementing regulations, specifically prohibits a licensee from serving alcoholic drink to a person actually and apparently intoxicated. We conclude that plaintiff's complaint sets forth a justiciable cause of action.'

Some courts, however, have barred a cause of action under these circumstances on the theory that the consumption of the alcoholic beverage, not the act of the retailer in serving it, is the proximate cause of any injuries suffered by the intoxicated patron. See 48 C.J.S. Intoxicating Liquors § 430, p. 716. In our opinion, this theory is unsound.

The petition adequately alleges factual causation. The usual test is whether but for defendant's conduct the injury to plaintiff would have occurred. For a defendant's conduct to be actionable it must be a necessary antecedent of plaintiff's harm. It need not, however, be the sole cause contributing to the harm. Dixie Drive It Yourself Sys. v. American Beverage Co., supra. Hence, factual causation becomes an issue to be resolved at the trial.

Proximate cause, however, is often used in a different sense from factual causation. A consideration of the doctrine often requires a duty analysis. It requires a determination of whether or not the duty, statutory or non-statutory, is designed to protect the plaintiff from the event which did in fact occur. Insofar as the concept is pertinent here, it is satisfied by our legal conclusion that the risk and harm allegedly encountered fall within the scope of protection of the duty. Dixie Drive It Yourself Sys. v. American Beverage Co., supra; Annotation, 100 A.L.R.2d 942,...

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