Rees v. Albertson's, Inc.

Citation587 P.2d 130
Decision Date02 November 1978
Docket NumberNo. 15527,15527
PartiesCraig REES, Plaintiff and Appellant, v. ALBERTSON'S, INC., Defendant and Respondent.
CourtSupreme Court of Utah

J. Kent Holland of Hanson, Russon, Hanson & Dunn, Salt Lake City, for plaintiff and appellant.

Stephan G. Morgan, Salt Lake City, for defendant and respondent.

CROCKETT, Justice:

Recovery is sought for plaintiff against defendant Albertson's, Inc., for contribution for $54,742.50 which has been paid on his behalf in satisfaction of claims against him 1 arising from an automobile accident in which two of his passengers were killed and another seriously injured.

The claim for contribution is based upon the contention that the defendant unlawfully and negligently sold beer to the minor plaintiff, which caused him to become intoxicated and was thus a contributing factor to the accident of concern herein. Upon the basis of the pleadings, affidavits and submissions (after interim proceedings referred to below), the court granted defendant's motion for summary judgment. Plaintiff appeals.

On the morning of September 3, 1974, the plaintiff (who was then 18 years old) and his companion Daryl McGehee, after having worked a graveyard shift, purchased a six-pack of beer. At about 9:00 a. m. they picked up two teenage friends, Jesse Andrews and Ricky Harris. The plaintiff drove them to the defendant's store in Logan, where the plaintiff bought four more six-packs of beer. The young men then went to a liquor store where the plaintiff bought a fifth of liquor, and proceeded to drive to Bear Lake. During the trip, there was mixing of the beer with liquors to make and drink "boilermakers"; and they later purchased at least one more six-pack of beer. On the way back through Logan Canyon that afternoon about 2:00 p. m., the defendant lost control of his car and it left the road and hit a tree. Andrews and McGehee were killed and Harris was injured.

Considerable tempest has been engendered in this case because the trial court first denied a motion for summary judgment made by the defendant, but upon subsequent proceedings decided to vacate that order, then reconsidered and granted defendant's motion. It would serve no useful purpose to go into any extended detail as to the proceedings. It is sufficient to say that it is the unquestioned prerogative of the court, either upon its own motion, or upon the application of a party, to change or correct any order which it judges to have been entered by "mistake, inadvertence, surprise, or excusable neglect" as provided by Rule 60(b), U.R.C.P. when it acts timely and within the provisions of that rule. The actions of the court were within that prerogative. 2

The issue of real concern is whether the court was justified in granting defendant's motion for summary judgment. The gravamen of defendant's motion, and its position on this appeal, is that even assuming that the defendant did knowingly sell beer to the minor plaintiff,

. . . there is no evidence and none can be produced which would show a causal relationship between Plaintiff's alleged purchases of the beer from Defendant and Plaintiff's intoxication . . ..

In support of its position, defendant relies upon an affidavit of Newell G. Knight, who gives his credentials as a State Technical Supervisor of alcohol-breath testing with extensive experience and knowledge concerning the effects of the consumption of alcoholic beverages. In his affidavit, Mr. Knight states:

. . . It is my opinion that there is no way in which it is possible to calculate the amount of intoxication, if any, that could have resulted from the beer purchased from Albertson's Inc. In other words, . . . It would be impossible to determine whether or not the beer purchased from Albertson's was a proximate cause of Plaintiff's intoxication at the time of the accident in question.

As opposed to the foregoing, the plaintiff relies upon an affidavit of Stewart C. Harvey, a professor of pharmacology at the University of Utah which stated:

. . . It is my opinion that it is possible to determine that the alcohol from the beer purchased from Albertson's and consumed by plaintiff Rees was still in Mr. Rees' system at the time of the accident in question And therefore would contribute to plaintiff's intoxication at the time of the accident in question. (All emphasis added.)

In justification of its summary judgment, defendant urges that notwithstanding the averments of Professor Harvey that it could be shown that plaintiff consumed some of its beer, it would be impossible to tell how much and to what extent it caused plaintiff to become intoxicated; and more importantly, that it was a causative factor in the tragic accident.

The rejoinder to this, on plaintiff's behalf, is that even if it cannot be determined exactly how much of defendant's beer contributed to his intoxication, from the brand names on empty cans in plaintiff's car, it could reasonably be believed that a substantial portion thereof combined with other liquors to cause plaintiff's intoxication, and that defendant could therefore be deemed to have contributed in causing the accident. By way of analogy, consider the often referred to "three martini lunch." Suppose each of three persons gives the subject one martini, and further, that three produced intoxication. It would neither be fair nor...

To continue reading

Request your trial
34 cases
  • Shannon v. Wilson
    • United States
    • Arkansas Supreme Court
    • 23 Junio 1997
    ...illegal sale of alcohol was proximate cause of injuries should be determined on case-by-case basis by jury); Utah: Rees v. Albertson's Inc., 587 P.2d 130 (Utah 1978) (reasonable minds could believe that selling beer to a minor could be the foreseeable proximate cause of an accident, so the ......
  • Boynton v. Kennecott Utah Copper, LLC
    • United States
    • Utah Supreme Court
    • 18 Noviembre 2021
    ...of the same general nature." Steffensen v. Smith's Mgmt. Corp ., 862 P.2d 1342, 1346 (Utah 1993) (quoting Rees v. Albertson's, Inc. , 587 P.2d 130, 133 (Utah 1978) ). In Jeffs , the court therefore considered the "negligent prescription of medication in general" and not just a particular su......
  • House v. Armour of America, Inc., 930552-CA
    • United States
    • Utah Court of Appeals
    • 31 Octubre 1994
    ...a question of fact to be decided by the jury. See Apache Tank Lines, Inc. v. Cheney, 706 P.2d 614, 615 (Utah 1985); Rees v. Albertsons, Inc., 587 P.2d 130, 133 (Utah 1978). However, when reasonable jurors could not conclude that the defendant's actions were the proximate cause of the plaint......
  • Williams v. Melby
    • United States
    • Utah Supreme Court
    • 29 Marzo 1985
    ...in negligence cases. See Bowen v. Riverton, Utah, 656 P.2d 434 (1982); Lamkin v. Lynch, Utah, 600 P.2d 530 (1979); Rees v. Albertson's, Inc., Utah, 587 P.2d 130 (1978). Plaintiff asserts that the architect's affidavit raised an issue of fact as to whether the building was negligently design......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT