Rohlfs v. Klemenhagen, LLC

Decision Date23 December 2009
Docket NumberNo. DA 08-0399.,DA 08-0399.
Citation354 Mont. 133,227 P.3d 42,2009 MT 440
PartiesCary ROHLFS and Terra Rohlfs, Plaintiffs and Appellants, v. KLEMENHAGEN, LLC, d/b/a Stumble Inn, Defendant and Appellee.
CourtMontana Supreme Court

For Appellants: David R. Paoli (argued), John Kutzman, Paoli, Latino & Kutzman, Missoula, Montana.

For Appellee: Patrick HagEstad (argued), Christopher Decker (argued), Milodragovich, Dale, Steinbrenner & Nygren, Missoula, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Plaintiffs Cary and Terra Rohlfs brought suit against Klemenhagen, L.L.C., doing business as the Stumble Inn, to recover damages incurred as the result of an automobile accident involving a patron of the Stumble Inn. The Twenty-First Judicial District Court, Lake County, granted Stumble Inn's motion to dismiss based on a provision of Montana's Dram Shop Act, § 27-1-710(6), MCA, that requires a claimant give notice to the potential defendant of intent to sue to within 180 days of the alleged furnishing alcohol to an intoxicated person. The Rohlfs appeal. The issues raised are:

¶ 2 Issue 1: Is § 27-1-710(6), MCA, special legislation prohibited by Article V, Section 12, of the Montana Constitution?

¶ 3 Issue 2: Is § 27-1-710(6), MCA, unconstitutional as a violation of equal protection of the law required by Article II, Section 4, of the Montana Constitution?


¶ 4 One evening in June 2006, Joseph Warren left the Stumble Inn tavern after several hours of drinking. Shortly thereafter, while driving his pickup truck, he collided with an automobile driven by Cary Rohlfs, causing Rohlfs severe injuries. Montana Highway Patrol officers investigating the accident observed that Warren smelled of alcohol and a test revealed that his blood alcohol level was 0.14, indicating his ability to drive was impaired by alcohol. Warren pled guilty to the offense of negligent vehicular assault. Stumble Inn does not contest in this appeal that Warren, at least in part, tortiously caused the accident and Rohlfs' resulting injuries. Both the Rohlfs and employees of the Stumble Inn knew immediately after the accident that Warren had been drinking alcohol at that bar just before he caused the accident.

¶ 5 A little over a year after the accident, in July 2007, the Rohlfs filed their complaint, alleging Stumble Inn is liable to them for the injuries caused by Warren because its employees served alcohol to him shortly before the accident while he was visibly intoxicated, in violation of § 27-1-710(3)(b), MCA. Stumble Inn moved to dismiss the complaint based on § 27-1-710(6), MCA, that provides:

A civil action may not be commenced under this section against a person who furnished alcohol unless the person bringing the civil action provides notice of an intent to file the action to the person who furnished the alcohol by certified mail within 180 days from the date of sale or service. The civil action must be commenced pursuant to this section within 2 years after the sale or service.

¶ 6 In response to the motion to dismiss, the Rohlfs concede they did not give the notice required by § 27-1-710(6), MCA, to Stumble Inn within 180 days. The Rohlfs argued to the District Court that the notice provision may not be enforced because it is unconstitutional special legislation and violates their right to equal protection of the law. The District Court granted the motion to dismiss. On appeal, the Rohlfs reiterate their special legislation and equal protection claims.


¶ 7 Statutes are presumptively constitutional. City of Billings v. Albert, 2009 MT 63, ¶ 11, 349 Mont. 400, 203 P.3d 828. A person challenging a statute's constitutionality bears the burden of proving it unconstitutional beyond a reasonable doubt. Eklund v. Wheatland County, 2009 MT 231, ¶ 14, 351 Mont. 370, 212 P.3d 297. The constitutionality of a statute is a question of law and we review the district court's application of the Constitution for correctness. Our review of constitutional questions is plenary. City of Billings, ¶ 11.

¶ 8 The question of whether a district court properly granted a motion to dismiss is a conclusion of law that we review for correctness. Public Lands Access Assn., Inc. v. Jones, 2008 MT 12, ¶ 9, 341 Mont. 111, 176 P.3d 1005.


¶ 9 Issue 1: Is § 27-1-710(6), MCA, special legislation prohibited by Article V, Section 12, of the Montana Constitution?

¶ 10 The Montana Constitution provides:

The legislature shall not pass a special or local act when a general act is, or can be made, applicable.

Mont. Const. art. V, § 12.

¶ 11 Rohlfs makes no "as applied" constitutional challenge to § 27-1-710(6), MCA. The central point of the Rohlfs' argument is that § 27-1-710(6), MCA, is prohibited special legislation as there is nothing unique about cases against bar owners under the Dram Shop Act, as compared to negligence cases generally, which makes evidence and witnesses more likely to disappear quickly. Thus, the Rohlfs assert the 180-day notice provision in § 27-1-710(6), MCA, has singled out "dram shop plaintiffs" for a unique procedural disability that is arbitrary and does not arise from any distinction that can withstand constitutional muster.

¶ 12 In the constitutional context, a law is not local or special if it operates in the same manner upon all persons in like circumstances. If a law operates uniformly and equally upon all brought within the circumstances for which it provides, it is not a local or special law. Lowery v. Garfield County, 122 Mont. 571, 586, 208 P.2d 478, 486 (1949). On the other hand, a law is special legislation if it confers particular privileges or disabilities upon a class of persons arbitrarily selected from a larger group of persons, all of whom stand in the same relation to the privileges or disabilities.

A special statute is one which relates to particular persons or things of a class, or one made for individual cases and for less than a class, or one which relates and applies to particular members of a class, either particularized by the express terms of the act or separated by any method of selection from the whole class to which the law might, but for such limitation, be applicable.

Lowery, 122 Mont. at 587, 208 P.2d at 487 (internal citations omitted).

¶ 13 Class legislation may be constitutional if the class established is germane to the purpose of the law and is characterized by some special qualities or attributes which reasonably render the legislation necessary. In other words, if the classification is reasonable and the law operates equally upon every person or thing within the given class, it is not unconstitutional. State ex rel., Fisher v. School Dist. No. 1, 97 Mont. 358, 366-67, 34 P.2d 522, 525-26 (1934). Reasonable classifications of persons will be upheld against a special legislation challenge. Linder v. Smith, 193 Mont. 20, 30, 629 P.2d 1187, 1192 (1981). A presumption exists in favor of a law being constitutional and the classification being reasonable. Great Falls Nat. Bank v. McCormick, 152 Mont. 319, 323, 448 P.2d 991, 993 (1968).

¶ 14 Section 27-1-710(6), MCA, does set up a class: those who seek to recover from a person or entity who furnished alcohol to a visibly intoxicated person who later caused an injury. This does not mean the statute is unconstitutional. It is constitutional if the established class is reasonable and treats all those equally that are within the class. Great Falls Nat. Bank, 152 Mont. at 323, 448 P.2d at 993 (citing State v. Safeway Stores, Inc., 106 Mont. 182, 76 P.2d 81 (1938)).

¶ 15 At common law, a purveyor of alcohol could not be held liable for injuries caused to a third party by his intoxicated patron or guest. The reason behind this rule was the idea that the consumption, rather than the furnishing of the alcoholic beverage, proximately caused the injury. Nevin v. Carlasco, 139 Mont. 512, 514-15, 365 P.2d 637, 638 (1961). However, in Nehring v. LaCounte, 219 Mont. 462, 471, 712 P.2d 1329, 1335 (1986) (overruling Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979)), this Court held that to exempt a purveyor of alcohol from liability without regard to his own negligence or fault was a Neanderthal approach to dram shop liability and rejected the common law rule.

¶ 16 After Nehring, the Legislature enacted § 27-1-710, MCA, commonly referred to as the Dram Shop Act, with the stated purpose to set statutory criteria governing the liability of a person or entity that furnishes an alcoholic beverage for injury or damage arising from an event involving the person who consumed the beverage. Section 27-1-710(1), MCA. In 2003, the Fifty-eighth Legislature enacted subsection (6) of the statute, adding the 180-day notice requirement the Rohlfs now attack.

¶ 17 In this instance, the legislative history reveals what motivated the Legislature to add the notice provision in question. In summary, the proponents of the notice requirement testified it is oftentimes difficult, if not impossible, to gather and preserve evidence concerning an event where a potential defendant was not present and may not be aware created potential liability. The legislators were also told that insurance coverage for liability created by the Dram Shop Act was not readily available because the gathering of evidence and location of witnesses was difficult. The Legislature accepted these arguments, and in its wisdom decided the 180-day notice requirement was appropriate to help alleviate the problem. Thus, it adopted subsection (6) to fix a time within which notice of a claim must be given, so that recollections are reasonably intact and witnesses are still available.

¶ 18 The dissent passionately disagrees with the Legislature's policy decision to create a class of tort defendants that serve alcohol and then establish a shorter period within which...

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